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O   1ANT A  BARBARA  °  . 


Johns  Hopkins  University  Studies 

I  N 

HISTORICAL'  AND  POLITICAL  SCIENCE 

HERBERT  B.  ADAMS,  Editor 


History  is  past  Politics  and  Politics  present  History— Freeman 


EXTRA  VOLUME 
XI 


AN  INTRODUCTION 


STUDY  OF  THE  CONSTITUTION 


A  Study  showing  the  play  of  Physical  and  Social  Factors 
in  the  Creation  of  Institutional  Laiv 


By  MORRIS  M.  COHN 

Attomey-at- Law  ' 


BALTIMORE 

The  Johns  Hopkins  Press 

1892 


Copyright,  1892,  by  the  Johns  Hopkins  Press. 


THE  FRIEDENWALD  CO.,  PRINTERS, 
BALTIMORE. 


PKEFACE 


In  submitting  the  following  work  to  the  public  a  few 
words  of  explanation  may  not  be  out  of  place.  It  was  written 
for  the  purpose  of  bringing  before  the  student  and  reader  of 
our  American  constitutional  system  a  mass  of  information 
which  at  present  lies  scattered  among  the  productions  of  many 
different  writers,  inquirers  and  thinkers.  While  it  is  not  as 
serviceable  a  work  to  the  active  legal  practitioner  as  so-called 
practical  books  may  be,  yet  I  believe  it  may  lay  claim  to 
being  of  some  use. 

The  scope  of  the  present  work  embraces  the  presentation 
of  what  may  tend  to  produce  a  better  understanding  of  all 
that  is  implied  in  the  existence  of  the  Government  of  the 
United  States  of  North  America.  It  aims  to  trace  the  play 
of  physical  and  social  factors  in  the  production  of  law  in 
general,  including  constitutional  law.  A  preliminary  chapter 
indicates  the  faulty  definitions  of  law  which  have  been  prev- 
alent; under  no  one  of  which  constitutional  law  can  be  fairly 
embraced.  The  play  of  physical  and  social  factors  as  regards 
inorganic  and  organic  conditions  (as  exemplified  in  the  indi- 
vidual and  in  the  aggregations  of  human  beings,  and  as  illus- 
trated in  the  law  of  property,  domestic  relations,  including 
the  laws  of  succession,  the  law  of  obligations,  the  law  of  pro- 
cedure and  constitutional  law,  and  in  the  formation  of  the 
Constitution  of  the  United  States),  forms  the  burden  of  this 
work. 

The  reflections  thus  given  are  the  outcome  of  years  of  close 
study  and  thought.     The  belief  early  formed  in  my  legal 


vi  Preface. 

studies,  that  the  Constitution  of  the  United  States  was  one 
out  of  many,  and  could  have  no  existence  save  in  connection 
with  well  settled  and  somewhat  diversely  governed  commu- 
nities which  preceded  it,  has  grown  into  an  unalterable  convic- 
tion. Repeated  expressions  of  federal  tribunals  bear  it  out.1 
In  this  connection  I  desire  to  extend  my  sincerest  thanks 
to  Dr.  Herbert  B.  Adams,  of  Johns  Hopkins  University,  for 
valuable  suggestions  relating  to  this  work,  for  kind  words  of 
encouragement,  and  other  services. 


1  Texas  v.  White,  7  Wall.,  p.  700. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 

LAW  AND   SOVEREIGNTY. 

PAGE. 

Law  did  not  always  imply  sovereignty 1 

Sovereignty  depends  upon  the  prior  existence  of  law 2 

The  great  mass  of  law  passes  current  because  it  symbolizes  the 

necessities,  feelings,  energies  of  mankind. 3 

Law  variously  accounted  for 4 

Invention  a  later  product  in  the  creation  of  law 4 

Aristotle's  view  of  political  development 4 

This  view  commented  upon ...    4 

'No/we,  jus,  lex 5 

Illustrations  from  the  growth  of  the  family  and  from  early  legal 

growth  in  Roman,  German  and  English  law 7 

Effect  of  legislation  and  priestly  initiative  upon  the  formation 

of  legal  systems 11 

Precedent  a  natural  process,  which  owes  its  casuistry  in  legal 

systems  to  the  priestly  class 13 

The  casuistry  implied  in  the  modern  legal  doctrine  of  precedent,  16 

The  current  of  a  nation's  life  not  changeable  by  individuals. . .  17 

Social  development  necessitates  legal  development 17 

Illustrations  of  this *s 17 

Physical  and  intellectual  forces  implied  in  legal  growth 16 

The  place  of  jurisprudence  grander  than  is  usually  supposed ...  20 
Germs  or  roots  of  law  probably  antedate  language,  and  law  is 

imbedded  in  the  social  organization,  and  is  as  indispensable 

as  lungs  are  to  the  human  being 20 

Further  discussion  in  succeeding  chapters  illustrating  this  fact;  21 

CHAPTER  II. 

PHYSICAL   AND   SOCIAL   FACTORS  OF  LAW. 

Section  I.— Inorganic  and  Organic  Physical  Factors. 

Dependence  of  political  and  jural  development  upon  physical 
factors  indicated 22 


viii  Contents. 

PAGE. 

Instances 23 

Esquimaux  required  to  expend  so  much  bodily  heat  that  no 

opportunity  is  given  to  him  for  development 23 

Influence  of  mountains,  wastes  and  swamps  in  keeping  back 

civilization  and  political  development 24 

Bodies  of  water  promotive  of  civilization  and  political  develop- 
ment    27 

Swiss  development 29 

England's  peculiar  growth 29 

Some  incidents  in  the  growth  of  the  United  States 30 

Elements  of  water,  light,  air,  and  noises  in  the  creation  of  law,  31 

Section  II.— The  Physical  and  Social  Factors  implied  in  Indi- 
vidual Existence  and  in  Human  Aggregates. 

Physical  features  in  political  and  legal  personality 35 

Liquor  laws 37 

Man  a  social  product 38 

He  is  a  part  of  a  physical  aggregation  of  individuals  making  for 

progressive  evolution 39 

Influence  of  roads,  bridges  and  fortifications  upon  social  aggre- 
gation and  jurisprudence 45 

Influence  of  early  mills,  agriculture  and  herding  upon  social 

aggregation  and  jurisprudence 51 

nfluence  of  war  and  military  life  upon  social  aggregation  and 

jurisprudence 52 

Influence  of  barter  and  trade  upon  social  aggregation  and  juris- 
prudence         56 

Views  of  Lyall,  Woolsey,  Hosmer,  Amos,  Miller,  and  Spencer 
regarding  the  influence  of  social  aggregation  on  the  individual,      64 

CHAPTER  III. 

THE   EVIDENCES   OF   PHYSICAL   AND   SOCIAL   FACTORS   IN   LAW. 

Section  I. — In  the  Law  of  Property  : 

Earliest  form  of  property  probably  movable  property,  relating 

to  sustenance,  mates  and  slaves 68 

Habitations  probably  later 68 

Agriculture  an  outcome  of  grubbing  for  sustenance,   which 

developed  with  serfdom 70 

Early  forms  of  agriculture 70 

Development  of  early  landholding 70 

Influence  of  agriculture 70 

Three-field  system  of  landholding 74 


Contents. 


1  x 


PAGE. 

Illustrations  of  early  forms  of  ownership 77 

Feudalism  prevalent  at  a  certain  stage  of  progress 84 

Its  impress  upon  law 86 

Effect  of  city  development  upon  landholding 88 

Peculiarities  in  development  of  landholding  in  the  Swiss  Alps, 

in  the  Low  Countries  and  in  England 90 

Effect  of  the  use  of  money  on  ownership 95 

What  property  embraces  possession  and  tradition 95 

Effect  of  city  growth  upon  the  law  relating  to  party-walls 100 

Objects,  their  effect  on  law  different  from  the  canvas  in  the 

painter's  work 100 

Property  not  an  evil  invention,  not  synonymous  with  un tram- 
meled control 101 

Its  overthrow  impracticable 101 

Theories  of  annihilistic  writers  not  based  on  any  proper  concep- 
tion of  jural  notions 101 

Section  II. — The  Law  concerning  Domestic  Relations  : 

The  development  of  domestic  relations  indicated 101 

Intercourse  and  aggregation  fundamental  characteristics  of  the 

human  being 102 

Family  in  the  modern  sense  only  possible  when  more  families 

than  one  in  a  given  group 102 

The  effect  of  the  worship  of  dead  ancestors  in  the  creation  of  an 

adherence  to  a  hearth 103 

This  an  incident  of  household  development 103 

Woman's  and  child's  place  indicated  in  the  development  of 

groups 104 

Succession  and  inheritance  and  their  influence  upon  law Ill 

Section  III. — In  the  Law  of  Obligations  : 

Signification  of  obligation 117 

Forms  of  obligations 118 

Development  of  the  meaning  of  the  term 118 

Classifications 118 

Dependence  on  physical  and  social  factors 123 

Torts  as  forms  of  obligations 121 

Section  IV. — In  the  Law  of  Procedure  : 

Procedure,  how  far  adjective  law 126 

Self-help 127 

Development  of  ordered  administration  of  justice  127 

To  what  extent  the  notion  of  right  is  innate 128 


Contents. 


CHAPTER  IV. 

THE  EVIDENCES  OF  PHYSICAL  AND  SOCIAL  FACTORS  IN  CONSTITUTIONAL  LAW. 

PAGE. 

Group-life  the  early  form  of  social  life 141 

Development  of  group-life  from  early  kinship  group  to  the  city 

form 141 

Amphictyonies 152 

Synoikismos 153 

Leagues  of  cities 154 

Rome's  place  and  causes  of  her  decline 155 

Slavery  and  serfdom,  their  influence  upon  political  develop- 
ment      157 

The  cyning,  konung,  and  king 1G0 

Manors  and  eourts-leet  and  baron 161 

Court  oipipowder 163 

Township 164 

Hundred  (not  like  the  phratria  or  pagus,  because  it  never  de- 
veloped into  the  city) 165 

Burg,  borough 167 

The  county  or  shire 169 

Representation  not  confined  to  modern  nations    173 

Segregation  of  functions  of  early  war  and  deliberative  assem- 
blages   174 

It  is  in  the  more  successful  distribution  of  political  functions 
that  the  modern  is  distinguished  from  the  ancient  political 

organism 1 78 

Parliament 179 

A  peculiarity  of  political  growth  in  the  United  States 180 


CHAPTER  V. 

EVIDENCES  OF  PHYSICAL  AND  SOCIAL  OROWTH  IN  THE  CONSTITUTION  OF 
THE  UNITED  STATES. 

Constitution  of  the  United  States  represents  the  institutional 

life  of  the  nation 181 

Evidences  of  this 181 

Continental  life  a  growth  and  a  prerequisite  to  national  organi- 
zation    182 

It  was  a  natural  outcome,  due  to  our  history  and  surroundings,  183 

Importance  of  reducing  the  Constitution  to  its  written  form. . . .  185 
Course  of  growth  of  American  people  from  the  political  "cell  " 

to  national  integration 186 

The  defects  of  the  Constitution 189 


Contents. 


XI 


PAGE. 

But  it  served  a  great  purpose 193 

It  was  founded  upon  previous  experience 193 

Features  copied  from  the  States 193 

Prescience  of  its  fraraers  vague 197 

Constitution  has  not  been  canonized 197 

Course  of  development  here  contrasted  with  early  Greek  political 

development 200 

The  effect  of  the  use  of  the  word  "  constitution  " 202 

Criticism  of  the  innate  ethical  theory 204 

The  development  of  certain  institutional  features  of  the  Consti- 
tution, such  as  the  division  into  coordinate  departments,  pro- 
visions relating  to  taxation  and  war,  Bill  of  Rights 204 

Freedom  a  product  of  social  and  political  evolution 209 

CONCLUSION. 

Unique  features  in  the  political  growth  of  the  United  States 214 

The  effect  of  the  rules  of  constitutional  construction  adopted  by 

the  Supreme  Court  of  the  United  States 216 

Theories  of  Henry  George  and  Edward  Bellamy  illusive  and 

insufficient 217 


AN  INTRODUCTION  TO  THE  STUDY  OF  THE 
CONSTITUTION. 


CHAPTER  I. 
LAW  AND  SOVEREIGNTY. 

Much  depends  upon  the  mode  in  which  one  approaches  the 
subject  of  law,  in  determining  what  signification  is  to  be 
given  to  the  term.  As  the  notion  of  "sovereignty"  has  been 
found  inadequate  to  account  for  all  rules  which  may  be  em- 
braced under  the  general  designation  of  law/  it  has  become 
needful  to  reform  the  current  definition  in  so  far  as  it  implies 
sovereignty  at  all  times.  As  laws  in  their  earliest  forms 
found  expression  through  priests  or  in  the  enforcement  of 
possessions  or  in  some  practical  mode  of  action  without  the 
aid  of  a  sovereign  body,  and  before  any  definite  political 
organisms  had  yet  grown  up,  sovereignty  could  not  well  be 
predicated  of  them.2  Sovereignty  itself  is  not  represented 
by  a  word  finding  its  use  in  ancient  tongues ;  it  is  a  word  of 
feudal  origin.1'  Its  implications — the  correlations  it  involves 
— testify  to  its  dependence  on  certain  elements,  chief  among 
which  is  the  series  of  observances  and  customs  giving  charac- 

1  Bliss,  Sovereignty,  Chap.  I.;  Clark,  Practical  Jurisprudence,  154, 155  ; 
Maine,  Early  History  of  Institutions,  Lectures  XII.,  XIII. ;  Post,  Bau- 
steine  fiir  eine  allgemeine  Rechtswissenschaft,  Vol.  II.,  §103  seg. 

2  Clark,  loc.  cit.;  Maine,  Early  History  of  Institutions,  Lectures  XII., 
XIII.;  Fustel  de  Coulanges,  Ancient  City,  Book  III.,  Chap.  XL;  Spencer, 
Principles  of  Sociology,  Vol.  II.,  Part  V.,  Chaps.  XIII.  and  XIV. 

3 Bliss,  Sovereignty,  Chap.  I.,  par.  2.  See-  opinion  of  Wilson,  J.,  in 
Chisolm  v.  Georgia,  2  Dallas,  419  ;  Bluntschli,  Theory  of  the  State,  463. 


2         An  Introduction  to  the  Study  of  the  Constitution. 

ter  to  the  agent  that  in  certain  essentials  claims  to  exercise  it. 
Sovereignty  depends  upon  law.1  Anarchy  is  a  condition 
implying  absence  of  government,  in  which,  as  during  the 
French  Revolution,  no  one  can  be  claimed  to  be  sovereign  ; 
that  is,  a  condition  of  lawlessness  which  inherently  contradicts 
the  possibility  of  a  controlling  agency. 

Though  it  is  claimed  that  in  the  United  States,  and  in 
democracies,  the  people  are  sovereign,  they  are  still  not  the 
legislators  who  consciously  enact  laws,  nor  are  they  in  fact 
sovereign  in  any  absolute  sense.  They  yield  to  the  customs 
they  have  inherited,  they  do  not  ordinarily  govern  in  any 
revolutionary  way ;  their  leading  spirits  control  them;  they 
build  upon  the  family  relationships  which  antedated  them, 
upon  the  results  of  larger  social  experiences  they  have  received 
from  their  ancestors  and  which  they  have  experienced  them- 
selves. Some  system  of  order,  and  with  it  a  general  con- 
sciousness of  self-interest  which  is  promoted  by  this  system, 
lies  at  the  base  of  every  political  organism.  A  man  is  sov- 
ereign over  himself,  but  not  over  others,  and  if  he  aims  to 
discharge  his  social  obligations  he  must  needs  conform  his 
activity,  his  will,  and  his  intellect  to  the  restraints  these  put 
upon  him,  and  these  restraints  are  the  product  of  association, 
taking  on  different  forms  at  different  stages  or  under  diverse 
circumstances,  as  amenable  to  the  modifications  of  social 
development  and  physical  environment  as  languages  and 
religions  and  aptitudes  are.  Sovereignty  is  a  growth,  and 
it   can   bo   only   applied  relatively.      In   the   United    States 


'Smith,  Right  and  Law,  £502.  See  Maine,  Popular  Government,  Index 
"Sovereignty";  Burgess,  Polit.  Sc.  and  Cons.  Law,  Part  II.,  Chap.  II. 
Mr.  Burgess,  it  seems  to  me,  has  left  little  in  his  notion  of  sovereignty, 
except  an  empty  illusion. 

2 Bliss,  Sovereignty,  p.  15  seq.;  Smith,  Right  and  Law,  Chap.  V.: 
Woolsey,  Political  Science,  Vol.  I.,  §§72,73;  Maine,  Popular  Govern- 
ment, Essay  I.,  pp.  7,  8  ;  Lieber,  Civil  Liberty  and  Self-Government,  152, 
also  Chap.  XXV.  seq.;  Bluntschli,  Theory  of  the  State,  Book  II.;  Bryce, 
American  Commonwealth,  Vol.  I.,  408  seq. ;  Wharton,  American  Law, 
£596;  Clark,  Practical  Jurisprudence,  Chap.  XIV. 


Law  and  Sovereignty.  3 

it  does  not  reside  in  the  people  by  virtue  of  any  antecedent 
development  nor  by  governmental  recognition.  The  people 
have  not  reserved  the  power  to  annihilate  the  government. 
They  can  make  changes  in  the  Federal  Constitution  only 
in  the  mode  prescribed  by  that  constitution.1  The  Federal 
Government  is  not  absolute  sovereign,  for  it  cannot  anni- 
hilate the  States.'2  The  States  are  not  so  because  within  the 
grant  of  its  power  the  Federal  Government  is  superior  to 
them.1 

The  idea  of  sovereignty  being  inherently  implied  in  law  is 
therefore  not  borne  out  by  the  facts  of  history  or  experience. 
It  presumes  the  anterior  existence  of  laws  or  their  equiva- 
lents.4 And  it  grows,  in  a  later  stage  of  development,  with 
the  expansion  of  jurisprudence.  It  is  a  somewhat  vague 
term,  for  it  assumes  the  existence  of  absolute  power — which, 
however  justifiable  in  theory,  does  not  exist  in  fact- — in -com- 
munities where  relative  rights,  powers  and  functions,  condi- 
tiouating  one  another,  must,  in  order  to  the  existence  of  a 
political  body,  exist.5 

Laws  may  be  enacted  by  legislative  bodies ;  so  may  words 
be  coined  by  learned  scientists  and  scholars,  and  thought  may 
be  directed  in  certain  channels  by  such  minds  as  Moses, 
Lycurgus,  Solon;  but  the  great  mass  of  law,  the  great  bodies 
of  usages  and  customs,  whether  crystallized  by  the  formula- 
tions of  legislative  or  judicial  bodies,  pass  current  because 
they  symbolize  the  necessities,  the  feelings,  the  energies  of 
mankind,  in  the  course  of  a  continuous  social  life;  usages 
and  customs  which  may  involve  the  rise  and  fall  of  many 
social  aggregates,  a  continuous  social  life  which  is  not  bounded 
by  decades,  generations  or  centuries. 


1  Constitution  of  the  United  States,  Art.  V.     Compare  Articles  of  Con- 
federation, Art.  XIII. 
Ubid.,  Article  IV.,  Sees.  3  and  4;  also,  Art.  V. 
'Art.  VI.,  Sec.  2. 

4See  Wharton,  Commentaries  on  American  Law,  £63,  also  p.  131. 
5  Wharton,  ubi  supra,  Chap.  III.;  Smith,  Right  and  Law,  §502. 


4         An  Introduction  to  the  Study  of  the  Constitution. 

Law  has  been  variously  accounted  for — internal  desire  to 
do  right,  consensus  of  the  will  of  the  members  of  the  political 
aggregate,  development  of  the  aggregate  from  the  family, 
divine  inspiration,  the  need  of  protecting  the  weak  against 
the  strong,  social  contract,  benevolent  feelings,  selfishness, 
utility,  evolution  of  social  forms  and  needs,  national  con- 
science, have  each  been  credited  with  the  principal  part  in  its 
origination.  Sometimes  more  than  one  of  these  views  is 
utilized  to  account  for  it.1 

We  can  obtain  a  better  idea  of  the  producing  causes  of  law 
if  we  bear  in  mind  that  invention  has  played  its  largest  part 
in  the  production  of  law  in  the  latest  development  of  state- 
hood. Now  the  state  is  itself  an  entity  of  growth.  The 
term  represents  political  bodies  as  widely  separated  in  char- 
acter as  the  municipal  sway  of  ancient  Greek  cities  and 
modern  nations.2  Aristotle  viewed  it,  with  the  best  lights 
he  had  before  him,  in  its  component  parts,  and  among  its 
fundamental  elements  he  found  the  olxo^  (family),  which 
he  ascribed  to  the  animal  impulse  of  cohabitation,  to  propa- 
gate species  and  give  mutual  support.  From  thence  the 
natural  course  of  extension  and  growth  was,  in  his  view, 
thrqngh  the  xcou/q  (village  community)  to  the  formation  of 
village  connections  and  an  organic  whole  compounded  of  many 
village  communities.  This  he  called  Ttolcz  (the  city-state). 
He  regarded  the  state  as  a  work  of  nature;  and  man  he 
regarded  not  only  as  a  social,  but  also  as  a  political  animal. 
A  government  complete  in  itself,  in  his  judgment,  consti- 
tuted the  best  result  of  human  development  and  existence.3 
Aristotle's  knowledge,  however  acute  his  powers  of  observa- 

1  Holtzendorf,  Encyclopaedia,  Systematischer  Theil,  Art.  I.,  by  Dr.  A. 
Geyer;  Wharton,  Commentaries  on  American  Law,  Chap.  II.;  Woolsey, 
Political  Science,  Part  II.,  Chap.  I.;  Clark,  Practical  Jurisprudence, 
Part  L,  Chap.  VIII. 

2  The  Indian  tribes  have  been  treated  as  equivalent  to  States  by  the 
Supreme  Court  of  the  United  States.  See  117  U.  S.  Rep.  288  ;  17  Wall. 
211. 

3 Politics,  Book  I.,  Chaps.  I.  and  II.     See  Chap.  IV.,  post. 


Law  and  Sovereignty.  5 

tion,  did  not  extend  beyond  the  ancient  city-state  and 
amphictyonic  leagues  of  cities;  leagues  based  on  religious 
motives,  though  serving  larger  and  more  extended  cohesive 
purposes.  In  his  day  no  doubt  d-ifietnez  (injunctions,  judg- 
ments, prescribed  rules)  were  known;1  yet  the  general  body 
of  what  we  embrace  under  the  head  of  law  was  customs  and 
usages  (vouoc).  Outside  of  what  came  from  the  gods  through 
the  Themis — and  these  ordinances  were  largely  copied  after 
the  observances  of  the  people — the  usages  and  customs  of  the 
people  in  their  relation  to  herding  of  cattle,  or  husbandry, 
or  navigation,  or  commerce,  or  in  relation  to  their  changing 
governors  who  rose  to  greater  power  as  the  cities  grew  and 
extended,  constituted  the  body  of  the  law  {vd/io^).  The 
history  of  these  terms  bears  out  this  contention.2  In  Roman 
law  jus  antedated  lex,  for  while  the  former  related  to  that 
which  was  orderly,  fitting,  customary,3  the  latter  came  into 
use  as  a  method  of  legislation  or  codification  of  usages,4  or  of 
enactments  not  depending  upon  usages. 

That  usages  and  customs,  such  as  prevail  among  savage 
races  to-day,  were  the  current  expressions  in  ancient  times, 
no  longer  admits  of  doubt.5  They  never  fully  ceased  to  rep- 
resent the  whole  sum  of  rules  until  political  aggregates,  having 
a  capacity  for  permanent  territory,  a  settled  abode,  and  some 

1  di/uig  in  early  Greek  history  and  fas  in  early  Italian  history  disclose 
the  early  influence  of  priests  in  the  creation  of  injunctions.  Cf.  Leist, 
Graeco-Ital.  Rechtsg.,  205  seq.,  §36,  533  seq.  For  similar  phenomena 
among  early  Semites  see  Wellhausen,  Hist,  of  Israel,  394,  395. 

2 Clark,  Practical  Jurisprudence,  Part  I.,  Chap.  IV.  See  Coulanges, 
Ancient  City,  Book  III.,  Chap.  XL;  cf.  Leist,  Graeco-Ital.  Rechtsg., 
533  seq.,  and  compare  Schrader,  Sprachv.  u.  Urg.,201 ;  same,  Handelsg. 
u.  Warenk.,  8. 

3 Clark,  supra,  Part  L,  Chap.  II.;  also  Part  I.,  Chap.  VII. 

4/fo'i.,PartI.,Chap.  III. 

5  Spencer,  Principles  of  Sociology,  Vol.  II. ,  PartV.,  Chap.  XIV.;  Post, 
Ursprung  des  Rechts,  Introduction  seq.;  same,  Bausteine  fur  eine  allge- 
raeine  Rechtswissenschaft,  Chap.  L;  Maine,  Early  Law  and  Custom. 
The  earliest  communities  of  India,  Greece  and  Italy,  we  are  now  assured, 
had  no  law.     Cf.  Schrader,  Sprachvergleichung  u.  Urgeschichte,  355. 


6  An  Introduction  to  the  Study  of  the  Constitution. 

form  of  governmental  administration,  came  into  vogue. 
Even  then  they  were  not  superseded.  The  laws  peculiar  to 
statehood  built  upon  them  depended  upon  them ;  courts 
enforced  them ;  legislatures  only  fragmentarily  superseded 
them.1  The  largest  dissolving  and  disintegrating  factors 
which  ever  destroyed  them  were  new  social  impulses,  pro- 
ducing new  needs,  new  customs,  new  observances.  The 
forms  of  organization  of  earliest  or  most  primitive  peoples 
preclude  the  thought  of  sovereignty  or  laws;  they  admit  of 
no  conception  going  beyond  the  habits  which  spontaneously 
grow  up.-  Professor  Clark  says  that  "  in  the  unconscious 
definitions  of  law  furnished  by  [the]  early  names  for  it  .  .  . 
different  conceptions  of  law  present  themselves,  not  only  in 
different  nations,  but  in  the  same.  The  nearest  approxima- 
tion to  a  uniform  or  pervading  idea  is  certainly  not  so  much 
that  of  enactment,  position  and  command,  as  of  antiquity,  gen- 
eral approval  and  usage:  where  an  original  notion  of  ordin- 
ance does  appear,  it  is  not  human,  but  divine."1 

From  this  plane  of  observation  of  Aristotle,  some  of  the 
most  modern  of  our  writers  upon  the  history  of  society, 
politics  and  law  have  not  materially  departed.4  But  the 
family  organization  from  which  these  start  is  not  the  modern 
family.  It  is  a  growth  depending  upon  association  of  indi- 
viduals that  had  its  beginning  in  cohabitation  and  carnal 
intercourse,  but  which  grew  by  adoption  or  natural  increase 

1  Cf.  authorities  in  preceding  note  ;  also  Bastian,  Reehtsverhaltnisse. 

2  Post,  Bausteine,  etc.,  I,,  £§  1  to  16;  same,  Urspruti piles  Rechts. passim  ; 
Schrader,  Sprachvergleichung  u.  Urgeschichte,  568  seq.  See  for  a 
description  of  legal  development,  which  attaches,  however,  too  much 
importance  to  sacred  factors,  Leist,  Graeco-Ital.  Reehtsg.,  Book  III. 

BClark,  Practical  Jurisprudence,  Part  I.,  Chap.  VII.,  90 ;  Post,  Bau- 
steine, etc.,  Vol.  I.,  §16  seq.;  Leist,  Graeco-Ital.  R.  G.,  Book  III.,  Part 
II.;  but  see  Ibid.  J81  and  Anmerkung  32,  p.  760  seq.     See  infra. 

4 See  Maine,  Ancient  Law,  123,  250;  same,  Village  Communities; 
Early  History  of  Institutions,  Lee.  III.;  Early  Law  and  Custom,  Chap. 
III.  seq.;  Hearn,  Aryan  Household  ;  Woolsey,  Political  Science,  Part  III., 
§138  seq.  See  especially  Spencer,  Principles  of  Sociology,  Vol.  II.,  Part 
V.,  Chap.  V. 


Lair  and  Sovereignty.  7 

and  depended  originally  upon  ties  of  consanguinity.'  Con- 
sanguinity became  the  sole  test  when  priestly  influence, 
co-operating  with  the  dissolution  of  the  tribe  and  village 
community,  occasioned  by  their  merging  into  the  state 
organism,  destroyed  the  integrity  of  the  early  group.'2 

In  Roman  law,  evidences  of  the  growth  of  law  from  early 
conditions  are  still  extant.  Take  that  system  of  law  in  its 
first  stages  of  self-conscious  expression,  when  the  rules  of 
action  were  made  known  and  realized  through  procedure — 
the  actio  saerammti.  This  brings  before  us  in  its  symbolic 
forms  the  early  combat,  settlement  of  rights  by  recourse  to 
arms  (of  which  the  wager  of  battle  known  to  early  English 
law,  and  also  the  grand  assize,  which  comprised  an  assembly 
of  knights  in  arms,  as  in  the  days  when  justice  and  war  went 
together,  were  relics),  and  the  voluntary  recourse,  generally  of 
the  weaker  injured  party,  to  the  deposit  of  a  wager  and  the 
arbitrament  of  the  tribe.8     This  action  lay  not  in  earliest 

'Starcke,  Primitive  Family  (Int.  Sc.  Series),  Sec.  II.,  Chap.  VIII.; 
Spencer,  Principles  of  Sociology,  Part  III.,  Chap.  III.;  W.  Robertson 
Smith,  The  Religion  of  the  Semites,  260  ;  same,  Kinship  in  Arabia  ; 
Maine.  Ancient  Law,  Chap.  V.,  128;  same,  Early  Law  and  Custom,  200, 
201 ;  Hearn,  Aryan  Household.  Chaps.  III.  and  VII.;  Woolsey,  Political 
Science,  Vol.  I.,  g 42  seq.;  Amos,  Science  of  Law,  120;  McLennan, 
Primitive  Marriage  ;  Bachofen,  Das  Mutterrecht.  See  post,  Chapter  II., 
Sec.  2  and  Chap.  IV.  No  better  illustrations  of  the  growth  from  the 
matriarchal  to  the  patriarchal  state  have  been  given,  so  far  as  my 
researches  have  disclosed,  than  in  Dr.  Smith's  Kinship  in  Arabia. 

2  See  Hearn,  Aryan  Household,  473 seq.;  SUreke,  Primitive  Family,  Sec. 
II..  Chap.  VIII.  It  required  both  a  dissolution  of  the  household  group 
produced  by  vis  major,  and  a  conception  of  blood  relationship  according  to 
formal  classifications,  based  on  natural  ties  of  affection,  which  priestly 
classes  were  principally  competent  to  accomplish,  to  produce  the  change. 
See  for  laws  of  early  family  life  growing  out  of  prevailing  customs  after 
the  church  had  acted  upon  them,  Essays  in  Anglo-Saxon  Law,  121  seq. 

:;Siegel  has  given  a  history  of  the  early  procedure  of  the  Germanic 
tribes :  Siegel,  Des  deutschen  Gerichtsverfahrens,  especially  #?1  to  6 
inclusive.  The  action  referred  to  emanated  from  the  Pontifical  College, 
and  hence,  as  early  expressions  of  law  in  formal  modes  in  all  cases,  was 
the  formulation  devised  by  priests.  Ihering,  Geist  des  romischen  Rechts, 
Vol.  I.,2\)8seq.,301seq.  See />os<, Chap.  III.,  Sec.  4.  For  the  still  earlier 
procedure,  see  Leist,  Graeco-Ital.  R.  G.,  Book  II.,  Part  111.;  Book  III., 
Part  II. 


8         An  Introduction  to  the  Study  of  the  Constitution. 

tribal  days,  but  when  the  community  had  developed  a  suffic- 
iently organized  political  unit  to  give  and  enforce  a  means  of 
redress.  No  consciousness  of  damages  beyond  the  thing 
itself  is  observed  in  the  earlier  form  of  action.  It  has  anal- 
ogies in  the  early  tribal  life  of  other  peoples  and  in  the  Eng- 
lish remedy  of  distress  and  replevin.1  The  thing  being 
brought  before  the  magistrate  {injure),  the  claimant  appeared ; 
each  touched  it  with  a  rod  (vindicta  or  festuca) ;  each  person 
laid  claim  to  the  thing,  seized  hold  of  the  thing  claimed  ;  the 
magistrate  then  interposed  his  rod  (vindicatio).2  When  the 
thing  could  not  be  brought  into  court,  something  was  brought 
in  to  represent  it,  as  a  piece  of  turf,  a  twig,  a  brick,  one 
sheep,  etc.3  There  is  an  obliviousness  to  anything  which  is 
not  tangible,  seizable,  within  the  capacity  of  the  senses  to  lay 
hold  of.  The  idea  of  right  to  compensation  for  a  mere  dam- 
age without  reference  to  a  return  of  a  thing  in  specie  seems 
not  yet  to  have  been  thought  of.  And  so,  too,  is  the  early 
procedure  of  the  Anglo-Saxon.4 

Another  relic  of  early  life  is  to  be  found  in  the  Roman  law  of 
possession.   Early  possession  formed  the  criterion  of  property . 

'See  Maine,  Early  History  of  Institutions,  Lecture  IX.  See  post, 
Chap.  III.,  Sec.  4. 

2  The  judge  was  merely  selected  to  deliver  his  opinion  regarding  the 
title  to  the  thing  in  dispute.  He  could  not  cite  them  to  appear,  or  compel 
appearance :  Ihering,  Geist  des  rom.  Rechts,  Vol.  I.,  172.  And  he  was 
selected  from  among  the  priests :  Ibid.,  Vol.  I.,  298.  Of  the  use  of  the 
spear  in  Roman  law,  as  a  symbol  of  the  early  militant  life,  and  for  other 
evidences  of  that  life,  see  Ihering,  Geist,  etc.,  Vol.  I.,  113  seq.  The 
symbol  of  ownership  was  the  spear  (Ibid.).  The  growth  of  the  vin- 
dicta from  the  spear  and  as  a  relic  of  early  combat  is  shown  by  the  same 
excellent  authority  [Ibid.,  Vol.  I.,  163).  The  actio  sacramenti  was  not 
a  condemnation  of  self-help  or  revenge,  but  a  substitute  therefor.  See 
Siegel,  supra.  For  further  illustrations  of  similar  development  upon  an 
extensive  scale,  see  Spencer's  Principles  of  Sociology,  Vol.  II.,  Part  V., 
Chap.  XIII.;  also  Maine,  Early  History  of  Institutions,  Lecture  IX. 

'•See  introduction  to  Sanders'  Justinian,  50. 

4  Essays  in  Anglo-Saxon  Law,  241  ;  Maine,  loc.  cit. 

5  Essays  in  Anglo-Saxon  Law,  241;  Amos,  Systematic  View  of  the 
Science  of  Jurisprudence,  pp.  153  seq.;  Ihering,  Besitzwille,  pp.  326  seq. 


Law  and  Sovereignty.  9 

Ownership,  in  so  far  as  it  came  to  exist  outside  of  mere  pos- 
session, was  a  later  development,  and  took  the  shape  in  law 
of  other  forms — a  facilitation  of  proof  of  such  a  title.1  Pos- 
session found  its  first  departure  in  Roman  law,  in  the  feeling 
that  the  household  serf's  possession  wTas  that  of  the  master ; 
because  the  serf's  identity  was  lost  in  that  of  the  master.2  It 
further  expanded  to  embrace  landed  property  held  under  the 
master  by  persons  holding  it  for  stipulated  services  or  rents, 
from  which  the  master  could  oust  them  as  he  could  the  serf.8 
In  German  and  English  law,  when  the  serf  came  to  receive 
some  recognition  on  his  own  account — which  he  did  as  the 
city  life  dissolved  the  elements  of  the  household  group  and 
became  the  medium  of  independent  rights — the  notion  of  rep- 
resentative holding  still  further  expanded.  The  commercial 
world  still  further  expanded  it  in  the  shape  of  bailments.4 
The  first  form  of  holding  was  a  product  of  status,  the  later 
was  a  form  of  contract;  the  former  represents  the  early 
savage,  barbarian,  or  tribal  condition,  and  the  absence  of 
commerce  and  commercial  forms  of  contract ;  the  later 
ignored  the  ties  and  sentiment  going  with  status,  in  the 
interest  of  traffic.5  How  leasehold  developed  on  the  Conti- 
nent with  the  growth  of  cities  is  shown  by  Arnold.6  Pos- 
session, in  the  absence  of  countervailing  evidence,  is  still 
sufficient  evidence  of  ownership  in  English  and  American 
jurisprudence.7 

1  Ihering,  Grund  des  Besitzes. 

2  Ihering,  Besitzwille,  Chapters  VII.,  VIII. 
3 Ibid.,  Chap.  VIII. 

4 For  a  history  of  bailment  in  English  law,  see  Holmes,  Common  Law, 
Lecture  V.  Agents  are  an  expansion  of  the  law  of  master  and  servant : 
Ibid.,  Lecture  VI.,  p.  228. 

5  For  a  more  extended  notice  of  the  difference  between  status  and  con- 
tract, and  the  greater  antiquity  of  the  former,  see  Maine,  Ancient  Law, 
Chap.  V.,  164,  165  ;  Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V., 
Chaps.  XVII. ,  XVIII.  Ihering  affirms  that  the  household  is  the  basis  of 
important  and  far-reaching  legal  classifications  :  Besitzwille,  103  seq. 

6  Arnold,  Geschichte  des  Eigenthums  in  D.  S.,  Chaps.  IV.,  V.,  VI. 
■>2  Wharton,  Evidence,  221331,  1332;  1  Taylor,  Evidence,  §123. 


]0       An  Introduction  to  the  Study  of  the,  Coiixtitution. 

The  status1  of  marriage  in  Roman  law  was  attained  by 
coemptiOf  a  fictitious  sale;';  by  covfarreatio,  in  which  none  but 
those  to  whom  the  jus  sacrum  was  open  could  take  part ;  and 
by  USU8,  that  is,  by  cohabitation  with  the  intention  of  forming  a 
marriage.8  It  might  be  a  sale,  and  as  such  a  relic  of  transfer 
by  barter — a  substitute  for  capture — prevalent  among  some- 
what developed  tribes  ;  it  might  be  a  mutual  living  together 
to  form  a  legal  family,  which  also  constituted  marriage  at 
common  law;4  or  it  was  a  sacred  ceremony,  initiated  by  the 
pontifical  (the  priestly)  class,  as  has  become  recognized  in 
modern  jurisprudence.' 

Id  fact,  law  has  come  up  in  the  body  of  habits,  customs 
and  observances  of  a  given  people;0  but  as  courts  and,  later, 
legislatures  came  to  give  these  form  and  new  expression, 
came  to  expand  the  formal  code,  the  great  movement  of  the 
community  in  its  ceaseless  activity  was  lost  sight  of  by  the 
exponents  and  students  of  the  letter  of  the  law,  who  devoted 
a  too  exclusive  attention  to  its  form  rather  than  the  history 
of  its  existence. 


1  It  is  still  a  status.  See  Bishop,  Married  Women  ;  Wliarton,  Commen- 
taries on  American  Law,  §271. 

3  There  are  relies  of  a  similar  condition  among  many  people,  including 
Anglo-Saxons.  See  Essays  in  Anglo-Saxon  Law,  p.  163  ;  Post,  Ursprung 
des  Itechts,  54;  same,  Bausteine,  ##30,  33;  Engel,  Ursprung  der  Familie, 
32;  Spencer,  Principles  of  Sociology,  Part  III.,  Chap.  X.  :  Schrader, 
Sprachv.  u.  Urg.,  550. 

'Sanders'  Justinian,  Lib.  I.,  Tit.  X.,  Note  93. 

4  James  Schouler,  Law  of  Husband  and  Wife,  §§31,  32,  33. 
>Ibid.,  §34. 

6Savigny,  Heutigen  romischen  Rechts,  Vol.  L,  §7;  fcfoltzendorf, 
Encyclopaedia,  Syst.  Theil,  pp.  101-105,  §§1,  2  ;  Puchta,  Institutionen, 
Vol.  I.,  §§13,  13;  Spencer,  Principles  of  Sociology,  Vol.  II.,  #539  seg. 
Fustel  de  Coulanges  (Ancient  City,  Book  II.,  Chap.  VIII.),  who  bases  the 
growth  of  civil  institutions  upon  family  groupings  organized  for  the  pur- 
pose of  remembering  and  worshiping  dead  chiefs,  and  who  accords  the 
largest  effect  to  religious  feeling,  contends  that  "  ancient  law  was  not  the 
work  of  a  legislator;  it  was,  on  the  contrary,  imposed  on  the  legislator. 
It  had  its  birth  in  the  family.  It  sprang  up  spontaneously  from  ancient 
principles  which  gave  it  root."  To  the  same  effect,  Ibid.,  Book  III.,  Chap. 
XI.     Of.  also,  Leist,  Graeco-Ital.  R.  G.,  Book  III.,  Tart  II. 


Law  and  So  in rif/n  t  y.  11 

The  causes  tending  to  produce  this  arc  traceable  to  the 
casuistical  mode  of  reasoning  by  which  the  written  law  is 
built  up  by  the  reasoning  of  courts  and  lawyers,  a  mode  of 
treatment  inaugurated  by  the  early  exponents  of  law,  the 
priestcraft.  One  distinguished  writer  on  the  growth  of  society 
has  contended  that,  in  addition  to  the  customs  of  evcry-day  life, 
there  occurred  in  archaic  times,  among  primitive  people,  that 
accumulation  of  injunctions  left  by  the  ghosts  of  the  dead 
and  proclaimed  by  the  priests,  which  led  to  the  rise  of  the 
first  unwritten  codes  ;  of  which  traces  are  found  among  such 
savage  tribes  as  the  Veddahs,  among  Scandinavian  bar- 
barians, early  Hebrews,  ancient  Egyptians,  East  Indian  tribes, 
the  oracles  of  the  Greek  diviners,  and  the  omens  of  the 
Roman  aruspices.1  The  Pontifical  College  was  an  out- 
come, and  the  influence  of  the  priestcraft  in  the  declaration 
of  prevailing  duty  as  measured  by  existing  usage  on  the 
Continent  of  Europe  and  in  Britain,  is  another  of  the  conse- 
quences of  this  fact.  Thus  the  habit  of  obedience  based  on 
reverential  fear  gave  a  start  to  a  stable  body  of  superstitions 
and  also  useful  rules.  When  they  came  into  vogue,  courts 
were  likewise  legislative  bodies  in  a  sense,  that  is,  both  would 
be  within  the  province  of  the  tribe,  but  controlled  by  the 
priests  or  scribes.  These  courts  were  first  open-air  meet- 
ings, and  from  them  came  the  Witenagemot,  which,  as  we 
shall  see,  divided  its  functions  as  England  developed,  to 
become  an  executive,  legislative  and  a  judicial  body,  separate 
and  independent  of  each  other.-  The  method  of  procedure 
of  the  priests,  after  they  obtained  corporate  efficiency  and 
stability,  was  to  carefully  preserve  the  traditions  and  pro- 

1  See  Spencer,  Principles  of  Sociology,  Vol.  II.,  §529  seq.;  Cmtius,  Hist, 
of  Greece,  Vol.  II.,  p.  23  seq.;  Waitz,  Deutsche  Verf.  Geschichte,  Vol.  I., 
Chap.  IX. .  pp.  326, 335, 336,  also  Chap.  VII. ,  p.  258 ;  Fnstel  de  Coulanges, 
Ancient  City, passim.  See  especially  Ibid.,  Book  III.,  Chap.  XI.  See 
also  ante  regarding  Themis  and  Fas. 

'SeeChap.  IV.  post.  See  also  Spencer,  Principles  of  Sociology,  Vol.  II., 
Part  V.,  Chaps.  XIII.,  XIV.  ;  Maine,  Early  Law  and  Custom,  Chap.  XI., 
p.  3S0  seq.  Cf.  Leist,  Graeco-Ital.  R.  G.,  Book  II.,  Part  I.,  §33  seq.; 
also  Book  III.,  Part  II. 


12       An  Introduction  to  the  Study  of  the  Constitution. 

cedure  of  their  body.1  Writing  of  the  Delphic  priesthood, 
Curtius  pertinently  says:  "If  we  consider  how,  besides 
extensive  knowledge  of  the  world  and  men,  in  the  circle  of 
the  priestly  families  there  was  handed  down  from  one  gener- 
ation to  another  a  peculiar  wisdom,  a  safe  tact  in  the  judg- 
ment of  difficult  relations  (for  a  series  of  similar  cases  already 
existed  to  serve  for  purposes  of  comparison  with  each  case 
submitted  for  an  opinion ;  and  thus  a  practice  came  to  form 
itself  with  continually  increasing  definiteness  for  answers  and 
counsel  of  every  kind);  if  we  consider  this,  it  is  not  difficult 
to  understand  how,  even  after  the  equalization  of  the  original 
difference  in  culture  formerly  prevailing  between  the  Apolline 
missions  and  the  country  people  around,  the  oracle  institu- 
tions could  preserve  their  authority  unimpaired  for  the  good 
of  the  people."2  The  earliest  English  jurists  were  priests, 
and  their  knowledge  of  Roman  law  has  made  itself  felt 
to  this  day  in  English  jurisprudence.  They  devised  the 
English  Court  of  Chancery  and  they  were  the  first  Chancel- 
lors. The  knowledge  of  reading  and  writing  was  spread  by 
them,  and  therefore  to  them  is  due  the  first  written  codes. 

1  Cf.  Leist,  Graeco-Ital.  R.  G.,  Books  II.  and  III. 

2Curtius,  History  of  Greece,  Vol.  II.,  p.  18.  Cf.  Leist,  Graeco-Ital.  R. 
G.,  Book  II.,  Part  L,  p.  193;  also  Book  II.,  Part  II.  "The  verb  from 
which  Torah  is  derived  signifies  in  its  earliest  usage  to  give  direction, 
decision.  The  participle  signifies  giver  of  oracles  in  the  two  examples 
Gibeath  Moreh  and  Allon  Moreh.  The  latter  expression  is  explained 
by  another,  which  alternates  with  it,  'oak  of  the  soothsayers.'  Now  we 
know  that  the  priests  in  the  days  of  Saul  and  David  gave  divine  oracles 
by  the  Ephod  aud  the  lots  connected  with  it,  which  answered  one  way  or 
the  other  to  a  question  put  in  the  alternative  form.  Their  Torah  no  doubt 
grew  out  of  this  practice.  .  .  .  But  it  continued  to  be  an  oral  decision  and 
direction.  .  .  .  There  is  no  Torah  as  a  ready-made  product,  as  a  system 
existing  independently  of  its  originator  and  accessible  to  every  one  ;  it 
becomes  actual  only  in  the  various  utterances,  which  naturally  form  by 
degrees  the  basis  of  a  fixed  tradition.  .  .  .  The  Torah  of  the  priests 
appears  to  have  had  primarily  a  legal  character.  ...  In  proportion  as 
the  executive  gained  strength  under  the  monarchy,  jus— civil  justice — 
necessarily  grew  up  into  a  separate  existence  from  the  older  sacred  fas.'" 
— Wellhausen,  Hist,  of  Israel,  394,  395. 


Lav)  and  Sovereignty.  13 

To  them   is    chargeable   some   of  the   peculiarities   of  our 
administration  laws.1 

To  them  is  attributable  the  form  which  our  doctrine  of 
precedent  obtained,  which  tended,  when  pursued,  to  crystallize 
into  more  and  more  rigid  classifications  and  rules  and 
methods.  Precedent  never  obtained  the  same  place  in  any 
other  system  of  jurisprudence  that  it  could  claim  in  ours. 
Roman  jurisprudence  offers  the  nearest  parallel  to  it.2  But 
in  so  far  as  they  tended  to  introduce  into  the  continental 
systems  of  Britain  their  borrowed  doctrines  and  their  casuis- 
tical adherence  to  precedent  at  the  expense  of  those  pastoral, 
agricultural  and  commercial  habits,  usages  and  customs 
which  laboriously  grew  up  with  the  expansion  of  the  com- 
munity; in  so  far  as  they  lost  sight  of  those  household  and 
social  relations  which  all  communities  implicate,  the  formal 
methods  of  the  priest  were  bound  to  yield.  By  means  of 
priestly  initiative,  invention  and  intellectual  devices  changed 
the  law  and  anticipated  the  growth  of  the  community,  as  well 
in  the  formation  of  codes  and  preparation  of  commentaries 
as  in  the  field  of  legislation.  Priestly  activity  as  judge  and 
legislator  has  ceased  in  civilized  countries.  Priestly  sophistry 
and  casuistry  live  only  in  the  methods  of  the  votaries  of  the 
law,  and  are  being  superseded  by  the  material  demands  of 
humanity.  One  writer  has  said,  "The  current  of  decision 
sometimes  varies  like  tides,"3 — a  consequence  of  the  conflict 
between  material  interests  and  formalistic  processes  of  reason- 
ing. Formalistic  processes  must  change,  must  vary  with  the 
change  of  material  interests;  the  difficulty  is  of  adapting 
language  to  needs.4 

^eepost,  Chap.  III.,  Sec.  2.  See  Pustel  de  Coulanges,  Ancient  City, 
Book  IT.,  Chap.  VII.     Cf.  Leist  loc.  cit. 

2  Hammond's  Introduction  to  Sanders'  Justinian,  xii.  to  xxiv.; 
Bishop,  Non-Contract  Law,  Chap.  LX.,  §1313  ;  Clark,  Practical  Juris- 
prudence, Part  II.,  Chap.  III.;  Leist,  Graeco-Ital.  R.  G.,  Book  III., 
Part  II. 

3  Hare,  American  Constitutional  Law,  Vol.  II.,  p.  670. 

4  Gf.  Leist,  Graeco-Ital.  It.  G.,  Book  III.,  Part  II.,  where  is  shown  the 
gradual  abatement  of  sacred  initiative  in  the  production  of  law,  and  its 
supersedure  by  material  rules,  in  ancient  Greece  and  Rome. 


14       An   Introduction  to  the  Study  of  the  Constitution. 

But  the  doctrine  of  precedent  still  continues  in  vigor.1  It 
represents  a  mode  of  thought  which  forms  its  very  basis. 
The  doctrine  of  agreement  and  difference  in  inductive  logic — 
whereby  we  make  our  estimate  of  the  new  from  the  plane  of 
view  of  the  old, — the  very  primitive  conjoining  of  sentient 
experiences  which  forms  the  first  sentient  generalizations  of 
savage  and  infant  minds,'  represent  a  similar  process ;  the 
latter  inaugurating  the  formation  of  language."  The  doctrine 
of  precedent  plays  a  most  important  function  in  the  creation 
and  application  of  law,  though  it  has  frequently  obtained  an 
extravagant  application  in  the  English  and  American  sys- 
tem.4 One  writer  tells  us  that  "  what  is  called  the  English 
Constitution  consists  of  the  fundamentals  of  the  British  polity, 
laid  down  in  custom,  precedent,  decision  and  statutes;  and 
the  common  law  (as  given  in  custom  and  precedent)0  in  it  is 
a  far  greater  portion  than  the  statute  law.  The  English  Con- 
stitution is  chiefly  a  common  law  constitution  ;  and  this  reflex 
of  a  continuous  society  in  a  continuous  law  is  more  truly 
philosophical  than  the  theoretic  and  systematic  constitution 
of  recent  France."6  Yet,  notwithstanding  this  eulogium,  he 
was  forced  elsewhere  to  admit  that  precedent  "may  be  sadly 
misapplied."7  Another  writer  whose  esteem  for  precedent  is 
of  the  most  exalted  kind  still  finds  much  to  criticise  about 
its  application/  It  has  operated  as  a  conservative  element 
in  the  preservation  of  order  and  method,  but  it  has  likewise 
been  productive  of  grave  abuse,  and  has  operated  not  only  to 

•See  Lieber,  Civil  Liberty  and  Self-Government,  208  seq.;  same,  Her- 
meneutics  (3d  ed.,  Notes  by  Wm.  G.  Hammond),  Chap.  VII.  and  Note  n  ; 
Wells,  Res  Adjudicata  and  Stare  Decisis,  Chap.  XL.  seq. ;  Cooley,  Con- 
stitutional Limitations,  *50,  *51 ;  Pollock,  Essays  in  Jurisprudence  and 
Ethics,  Chap.  IX. 

■  Romanes,  Mental  Evolution  in  Man,  Chaps.  I.  to  IX.,  inclusive. 

-Ibid. 

4  See  Lieber,  Hermeneutics,  nupra. 

5  Precedent  embraces  decisions.     See  infra. 

6  Lieber,  Civil  Liberty  and  Self-Government,  loc.  cil. 
'■  Hermeneutics,  191. 

8  Joel  Prentiss  Bishop,  Non-Contract  Law,  Chap.  LX.,  Subd.  III. 


Law  and  Sovereignty.  15 

delay  the  progress  of  mankind,  but  it  has  bred  confusion  by 
ignoring  the  signs  of  that  progress.  To  use  it  correctly 
always,  even  in  the  view  of  an  English  or  American  lawyer, 
involves  an  amount  of  intelligence  and  care  which  no  judge 
or  lawyer  can  lay  claim  to.  When  it  comes  to  applying  pre- 
cedent in  law,  logic  yields  to  experience  and  social  sentiments, 
and  the  compass  of  language  is  being  constantly  abridged  or 
extended  by  modifications  and  qualifications  that  are  aimed 
to  conform  to  social  needs.  The  Supreme  Court  of  the 
United  States  was  supposed  by  the  legal  profession  for  many 
years  to  intend  to  follow  State  decisions  on  all  questions 
relating  to  State  law,  except  perhaps  commercial  law.1  Yet  in 
later  years  it  has  greatly  qualified  this  doctrine,"  and  it  has 
even  gone  so  far  as  to  ignore  the  decisions  of  State  courts 
under  State  legislation.3  As  it  stands  now,  the  doctrine,  how- 
ever appropriate  to  a  preservation  of  the  limits  of  Federal 
control,  may  have  no  application  where  the  Federal  court  has 
preceded  the  State  court  in  its  decision  of  a  given  point,  or 
where  the  decisions  of  the  State  court  conflict  and  non-resi- 
dents of  States  are  interested,  or  where  to  permit  the  applica- 
tion of  later  State  decisions  will  impair  contracts  as  understood 
under  the  earlier  State  decisions.  One  difficulty  in  applying 
precedent  is  to  know  how  much  of  the  language  of  the  opinion 
to  lay  stress  upon;  too  much  or  too  little  may  change  the 
construction  to  a  noteworthy  extent.  Moreover,  we  ought  to 
ascertain  whether  the  judge  who  delivered  it  was  prejudiced 
or  ignorant,  for  such  things  have  been.  To  confine  the 
opinion  to  the  case  in  which  it  was  delivered  is  almost  to 
deprive  it  of  any  effect  as  a  precedent.  To  give  the  same 
weight  to  the  language  as  to  a  legislative  enactment  is,  of 
course,  to  be  extravagant.     But  the  greatest  evil  implied  in 

1  Conflict  between  Federal  and  State  Decisions :  by  Wm.  B.  Hornblower, 
Am.  Law  Review  [N.  S.],  Vol.  I.,  p.  211  ;  by  J.  B.  Heiskell,  ibid.,  Vol. 
XVI,  p.  743. 

2  Burgess  v.  Seligman,  107  U.  S.  Reports,  pp.  20.  33,  34,  and  authori- 
ties there  cited. 

:;  Mohr  v.  Maniere,  101  U.  S.,  p.  421  seq. 


16       An  Introduction  to  the  Study  of  the  Constitution.- 

its  too  extravagant  use  is  the  narrowness,  the  unelasticity 
which  it  gives  to  the  law,  and  the  reasoning  on  words,  the 
casuistry,  it  produces.  It  is  thus  a  legitimate  child  of  its 
originators,  a  formal  product  of  priestly  creators.  Neverthe- 
less, if  it  can  be  made  free  of  extravagances,  it  may  be  in- 
strumental in  giving  a  scientific  turn  to  the  law.1 

In  the  process  of  its  expansion  not  only  has  the  domain  of 
law  been  widened  by  the  current  of  habit  and  custom,  and  by 
the  activity  of  intellectual  factors  such  as  are  implied  in  the 
judicial  and  legislative  activity  of  the  community,  but  it  has 
likewise  been  irresistibly  affected  by  the  play  of  physical 
environment;  physical  environment  not  confined  to  the 
mere  geographical,  topographical  and  climatic  conditions  by 
which  human  beings  are  surrounded.  In  that  play  of  phys- 
ical factors  is  to  be  comprehended  the  cohesive  forming  of 
social  aggregates  in  the  slow  course  of  social  integration ;  the 
physical  and  neural  character  and  development  of  human 
beings  which  betray  themselves  in  ordinances  against  witch- 
craft, in  rules  favoring  sacrifice  even  of  human  beings,  in 
rules  preservative  of  animals ;  the  effect  of  connecting  groups 
of  the  same  social  aggregates  and  diverse  social  aggre- 
gates by  ties  of  consanguinity  or  by  nerves  such  as  are 
implied  in  channels  of  communication  by  footpath,  wagon 
road,  turnpike,  river,  railroad,  lake  or  ocean,  telegraph,  etc.; 
likewise  are  to  be  included  therein  ganglia  of  industrial  and 
political  life  such  as  municipal  centers,  and  that  less  organized, 
yet  not  less  important  tract,  the  pastoral  and  agricultural 
non-urban  sections  of  the  country.  The  elaboration  of  this 
subject  has  been  relegated  to  the  succeeding  chapters  of  the 
present  work.2 

'See  Pollock,  Essays  in  Jurisprudence  and  Ethics,  Chap.  IX.,  "The 
Science  of  Case  Law." 

-  See  Montesquieu,  Esprit  de  Lois,  Vol.  L,  Book  XIV.;  Ihering,  Zweck 
im  Recht ;  Spencer,  Data  of  Ethics ;  Amos,  Science  of  Law  ;  ilosmer, 
Physics  and  Politics;  Fowler,  Progressive  Morality  and  Principles  of 
Morality;  Holtzendorf,  Encyclopaedia,  Systematischer  Theil,  p.  51  seq. ; 
Maine,  Early  History  of  Institutions,  and  Early  Law  and  Custom. 


Law  and  Sovereignty.  17 

Let  us  remember  that,  as  little  as  any  single  individual 
invention  could  create  or  change  a  language,  so  equally  does 
it  lie  out  of  the  range  of  individual  power  to  change  the  legal 
current  of  a  nation's  life.  And  the  laws  which  have  come 
and  gone,  leaving  only  relics  in  the  form  of  unconscious  yet 
potential  sentiment  for  right,  have  not  died  out  through 
individual  effort,  as  little  as  they  could  be  kept  alive  or 
breathed  into  life  again  by  such  effort.  The  following  illus- 
trations from  modern  jurisprudence  show  how  laws  are  forced 
into  as  well  as  out  of  existence.  The  corporate  creations  of 
Palestine  and  Greece  were  less  definite  and  less  numerous 
than  those  of  Rome,  and  in  all  of  that  rich  mine  of  judicial 
information  which  Roman  jurisprudence  has  left  to  us  we 
find  nothing  to  resemble  our  stock  companies.  Even  in 
England  there  is  nothing  to  compare  with  the  development 
which  corporate  life  has  gone  through  in  the  United  States.1 
One  English  writer2  and  one  American  writer3  have  drawn 
and  emphasized  the  distinction  between  the  law  of  partner- 
ship and  that  of  corporations,  and  though  at  present  the 
courts  have  seemed  to  hold  against  the  right  of  corporations 
to  go  into  partnership,  the  day  may  come  when,  driven  by 
the  necessity  of  providing  against  a  ruinous  competition 
destructive  of  railways  and  channels  of  communication  and 
transportation,  the  formation  of  partnerships  among  railroads 
may  be  measurably  countenanced.  The  governmental  pre- 
rogative of  eminent  domain  has  descended  upon  corporations 
who  maintain  railroads,  telegraphs  and  (sometimes)  grist- 
mills.4 And  no  good  reason  seems  to  exist  why  individuals 
should  not  enjoy  the  same  right,  where  they  are  engaged  in 
furthering  similar  enterprises.    The  tests  of  partnership  have 

'In  Smith,  Mercantile  Law,  a  chapter  on  Corporations  takes  up  less 
space  than  almost  any  other  chapter  in  the  book  and  is  disposed  of  in  a 
few  pages. 

2  Judge  Lindley,  Law  of  Partnership. 

3  Mr.  Morawetz,  Law  of  Corporations.  Mr.  Morawetz  has  probably 
derived  some  of  his  inspiration  from  Judge  Lindley's  work. 

4  See  Lewis,  Eminent  Domain. 


18        An  Introduction  to  the  Study  of  the  Constitution. 

been  forced  to  yield  to  the  demands  of  trade,1  and  so  has  the 
law  of  libel  in  relation  to  commercial  agencies.2  The  law  of 
evidence  has  yielded  to  the  development  of  married  women's 
rights  so  as  to  put  an  extraordinary  burden  of  proof  upon 
them  in  certain  cases.3  Now  a  man  may  not  buy  a  stock 
of  goods  of  an  insolvent  without  taking  extra  precautions, 
that  he  do  not  pay  money  in  addition  to  his  debt,  and  that 
he  pay  no  money  which  may  be  used  by  the  insolvent  to 
evade  payment  of  debts.4  There  was  no  such  law  relating  to 
fraudulent  conveyances  in  the  days  of  Elizabeth,  or  even  in 
England  in  a  much  later  day.5  How  the  capacity  of  courts 
to  enforce  judgments  may  be  completely  thwarted  by  the 
adverse  sentiment  of  the  people,  even  though  the  incapacity 
involves  a  grave  breach  of  contract  rights  under  the  consti- 
tution of  the  United  States,  is  illustrated  by  the  case  of 
Meriwether  v.  Garrett,6  decided  by  the  Supreme  Court  of  the 
United  States.  There,  by  the  taking  away  of  the  existence 
of  the  political  organization  of  the  city  of  Memphis,  the  courts 
were  disabled  from  enforcing  a  large  obligation  against  the 
city,  although  the  territory  and  property  of  the  corporation 
still  continued  in  existence  as  before.  Mr.  Hare,  speaking 
of  such  cases,  says  that  they  are  instances  of  the  "often  veri- 
fied truth  that  the  tribunals  are  powerless  where  the  great 
body  of  a  community  are  resolutely  bent  on  frustrating  the 
laws."7  Evidence  of  the  same  truth  is  now  accumulating  in 
the  Southern  States,  under  the  constitutional  amendment 
which  has  invested  the  negro  with  the  franchise.8     The  law 

'Clement  Bates,  Law  of  Partnership,  Chaps.  I.  and  II. 

s  Errant,  Law  of  Mercantile  Agencies. 

3Seitz  v.  Mitchell,  94  U.  S.  Reports,  pp.  583,  584. 

*See  Clements  v.  Moore,  6  Wallace  (U.  S.  Sup.  Ct.),  p.  299;  Open- 
heimer  v.  HalfE,  68  Texas,  p.  404  ;  Brown  v.  Vaughn,  70  ibid.,  pp.  49, 50 ; 
Leinkauff  v.  Prenkel,  80  Ala.,  pp.  136,  139;  Christian  v.  Greenwood,  23 
Ark.,  pp.  258,  265  ;  Dyer  v.  Taylor,  50  Ark.,  p.  314. 

6  See  May,  Fraudulent  Conveyances,  2d  Eng.  ed.,  edited  by  S.  W. 
Worthington. 

6102U.  S.  472. 

1  Hare,  American  Constitutional  Law,  Vol.  I.,  p.  648. 

8  Fifteenth  Amendment. 


Law  and  Sovereignty.  19 

of  the  United  States  relative  to  assignments  for  the  benefit  of 
creditors  is  a  departure  from  the  law  of  trusts,  many  legal 
trusts  being  bad  assignments.1  The  creation  of  stock  certifi- 
cates has  produced  stock  exchanges  and  the  laws  of  stock 
exchanges.2  The  development  of  warehouses  has  produced 
warehouse  receipts,  which  form  a  large  part  of  the  securities 
of  large  cities,  and  incidentally  the  law  of  warehouse  receipts 
is  expanding.3  The  municipal  corporations  have  grown  so 
fast  and  have  changed  so  much  that  they  not  only  have  given 
rise  to  a  law  sui  generis,  but  incidentally  they  have  tended 
to  enlarge  the  domain  of  commercial  paper  in  the  shape  of 
warrants  and  negotiable  bonds. 

No  mind  can  become  intelligent  without  the  pabulum 
which  daily  life  produces  from  contact  with  the  environing 
physical  conditions,  be  those  conditions  phenomena  of  or- 
ganic or  of  inorganic  nature,  social  or  anti-social  in  form ; 
and  it  receives  no  small  proportion  of  its  character  by  inher- 
itance. The  mind  is  the  abstract  denomination  for  many 
elements  which  bodily  contact  with  environing  physical  con- 
ditions produces,  such  as  the  five  senses,  together  with  such 
states  as  health,  pain,  fear,  fatigue,  etc.,  showing,  with  what 
precedes,  that  two  factors  are  observable  in  the  creation  of 
laws,  the  one  of  which  is  traceable  to  a  physical  source,  the 
other  to  an  intellectual  source.  And  the  discussion  likewise 
shows  that  the  intellectual  factors  by  no  means  preponderate; 
a  fact  very  rarely,  if  ever,  heretofore  referred  to. 

One  eminent  German  writer,  whose  pursuit  of  the  study 
of  law  has  taken  the  widest  range,  and  who  contends  that  the 
ethnic-morphologic  mode  is  the  only  thorough  way  in  which 
to  approach  the  study  of  jurisprudence,  has  emphasized  the 
play  of  physical  and  intellectual  factors,  by  contending  that 
custom  and  law  are  the  forms  in  which  the  mechanical 
aspects  of  social  and  industrial  activity  present  themselves, 

1  Compare  Burrell,  Assignments,  with  Perry,  Trusts. 

2  Dos  Passos,  Law  of  Stock  Exchange. 

3  See  Tiedeman,  Commercial  Paper,  §499. 


20       An  Introduction  to  the  Study  of  the   Constitution. 

they  dealing  solely  with  the  acts  of  mankind.1  But  a  better 
view  is  that  which  makes  customs  and  laws  a  product  of 
those  evolving  incidents  of  social  growth  which  mark  the 
growth  and  decay  of  groups  and  states  and  peoples.2 

The  outlines  contained  in  this  chapter,  it  seems  to  me, 
reveal  a  much  grander  and  nobler  place  for  jurisprudence, 
and  what  jurisprudence  implies,  in  the  world  of  human  crea- 
tions, than  has  heretofore  been  generally  accorded  to  it. 

Laws  trace  their  earliest  beginnings,  the  seeds,  germs,  or 
rudiments  from  which  they  grew,  to  a  period  antedating  the 
rise  of  an  alphabet.3  From  the  savage's  life  and  customs  up 
to  our  day  the  spread  of  jurisprudence  has  gone  on,  consti- 
tuting, with  the  lapse  of  centuries,  one  of  the  bodily  elements 
with  which  social  organization  has  been  able  to  assume  a 
continually  better  form.  The  basis,  the  very  matrix  of  law 
is  so  imbedded,  integrated,  in  the  social  organization,  that  the 
latter  can  as  little  be  thought  of  without  it  as  can  the  human 
body  without  lungs  to  breathe  with. 

Of  this,  the  accepted  definitions  of  law  give  us  no  inkling. 
Still  more  they  lose  sight  of  the  heterogeneous  character 
of  our  codes,  bearing  upon  all  manner  of  subjects,  and 
embracing  interpretative  or  declaratory  provisions,  directory 
and  not  mandatory  provisions,  optional  provisions,  and  pro- 
visions which,  like  provisions  in  limitation  acts  and  "  stat- 
utes of  fraud,"  depend  upon  how  the  parties  have  conducted 
themselves  and  whether  they  wish  to  invoke  them.  They 
lose  sight  of  the  many  rules  of  construction  which  constitute 
the  burden  of  works  on  construction  and  interpretation ; 
rules4  which  contain  no  command  nor  strictly  a  rule  of  action, 
but  rather  a  rule  of  interpretation — a  form  of  definition  or 
explanation. 

'Post,  UrsprungdesRechts,  Chap.  XV.;  same,  Bausteine, etc.,  Chap.  I. 

i  Cf.  Spencer,  Principles  of  Sociology,  Political  Institutions. 

8See  Taylor,  The  Alphabet;  Post,  Bausteine,  etc.,  Chap.  I.;  same, 
Ursprung  des  Rechts. 

4  See  Endlich,  On  Interpretation;  Lieber,  Hermeneutics ;  Sedgwick, 
Statutory  and  Constitutional  Law,  Potter's  Dwarris,  etc. 


Law  and  Sovereignly.  21 

Constitutional  law,  as  that  term  is  understood  in  the 
United  States,  and  as  it  is  largely  understood  in  other  coun- 
tries, does  not  seem  to  be  covered  by  the  ordinary  definitions 
of  law.1  Relating  to  organic  political  existence,  and  dealing 
with  the  structure  and  powers  of  the  government,  it  defines 
as  much  the  sovereignty  as  it  does  the  tributary  powers. 
It  deals  largely  with  grants  of  power  and  definitions  of  power 
previously  existing.2  And  those  powers  represent  a  funda- 
mental functional  activity,  whose  coming  into  fruition  was 
the  growth  of  ages.  We  shall  have  abundant  reason  for 
saying,  as  we  pursue  the  summary  study  of  legal  growth, 
that  the  law  has  a  growth  outside  of  constitutional  growth, 
yet  that  both  are  the  inevitable  outcome  of  social  develop- 
ment upon  the  scale  of  cosmical  development.8 

'See  George  H.  Smith,  Right  and  Law,  Chap.  III.,  §433,  Chap.  V., 
§505. 

2  See  the  last  two  chapters  of  this  work. 

3  Dicey  attributes  a  large  constitutional  influence  to  "  the  rule  of  law." 
Law  of  the  Constitution,  Part  II. 


CHAPTER  II. 

[PHYSICAL  AND  SOCIAL  FACTORS  OF  LAW. 

SECTION  I. — INORGANIC   AND   ORGANIC   PHYSICAL   FACTORS. 

The  elements  with  which  the  human  being  started  upon 
his  tremendous  career,  outside  of  his  bodily  organism,  his 
associates  and  animals,  comprised  those  physical  elements  by 
which  we  are  still  surrounded.  They  played  a  part  in  condi- 
tionating  his  development  from  lower  to  higher  conditions, 
and  discoveries  point  with  yearly  increasing  frequency  to 
the  fact  that  they  conspired  to  bring  him  into  existence. 
A  poisonous  atmosphere  will  annihilate  life  to  such  an 
extent  that,  in  the  deserts  of  southern  Arabia,  human  life 
seems  impossible.  Too  cold  an  atmosphere,  as  in  hyper- 
borean regions  or  on  the  top  of  lofty  mountains,  produces  the 
same  results.  And  if  life  be  possible,  its  possibilities  in 
countries  subjected  to  extreme  cold  will  be  so  limited  that 
bodily  and  mental  growth,  and  the  development  of  customs 
and  institutions,  will  be  stunted  and  meager.  Man  must 
have  a  climate  which  will  give  him  some  opportunity  to  do 
something  beyond  keeping  alive,  before  he  can  develop  any 
extraordinary  characteristics.  That  is  clearly  shown  by  the 
history — if  one  may  speak  of  history  in  that  connection — of  the 
peoples  inhabiting  the  northernmost  inhabitable  regions  of 
both  hemispheres,  and  by  the  not  less  noteworthy  fact  that 
civilization  and  politics,  including  jurisprudence,  are  the 
outcome  of  people  who  lived  in   more   congenial   regions.1 

1  Montesquieu,  Spirit  of  Laws,  Vol.  I.,  Book  XIV.,  has  dwelt  upon  the 
influence  of  physical  factors  on  people  and  their  legal  institutions.  Many 
of  his  conclusions  would  not  now  be  accepted.  Dr.  Woolsey,  Political 
Science,  Vol.  II.,  515, 516,  has  referred  to  the  influence  of  physical  factors 


Physical  and  Social  Factors  of  Law.  23 

"  Where  the  temperature  which  man's  vital  functions  require 
can  be  maintained  with  difficulty,  social  evolution  is  not  pos- 
sible. There  can  neither  be  a  sufficient  surplus-power  in 
each  individual  nor  a  sufficient  number  of  individuals.  Not 
only  are  the  energies  of  the  Esquimaux  expended  mainly  in 
defending  himself  against  loss  of  heat,  and  in  laying  up 
stores  by  which  he  may  continue  to  do  this  during  the  arctic 
night,  but  his  physical  processes  are  greatly  modified  to  the 
same  end.  Without  fuel,  and,  indeed,  unable  to  burn  within 
his  snow-hut  anything  more  than  an  oil-lamp  lest  the  walls 
should  melt,  he  has  to  keep  up  that  bodily  warmth  which 
even  his  thick  fur-dress  fails  to  retain,  by  devouring  vast 
quantities  of  blubber  and  oil;  and  his  digestive  system, 
heavily  taxed  in  providing  the  wherewith  to  meet  excessive 
loss  by  radiation,  supplies  less  material  for  other  vital  pur- 
poses. This  great  physiological  cost  of  individual  life, 
indirectly  checking  the  multiplication  of  individuals,  arrests 
social  evolution."1  The  Voguls  of  Asiatic  Siberia,  during 
their  short  summers,  live  in  isolated  families,  each  pursuing 
the  forest  game,  while  in  winter  they  pitch  their  tents  or 
build  their  huts  at  considerable  distances  one  from  the  other, 
being  nowhere  grouped  into  villages.  The  family  spirit 
among  them  seems  but  slightly  developed.  The  Tunguses, 
in  the  same  quarter  of  the  globe,  are  still  in  a  hunting  state, 

in  politics.  See  also  Bluntschli,  Theory  of  the  State,  Book  III.,  Chap. 
II.;  Buckle,  History  of  Civilization,  Vol.  I.,  32  seq.;  Spencer,  Principles 
of  Sociology,  Vol.  I.,  §15;  Reclus,  Earth  and  its  Inhabitants,  Europe, 
Vol.  V.,  Asia,  Vol.  I.,  where  he  treats  of  tribes  in  Scandinavia  and  Siherin . 
See  further,  Felix,  Der  Einfluss  der  Natur  auf  die  Entwickelung  des 
Eigenthums. 

1  Herbert  Spencer,  Prinoiples  of  Sociology,  Vol.  I.,  §15.  He  further 
illustrates  the  correctness  of  his  position  by  citing  "  the  still  more  miser- 
able Fuegians"  in  the  southern  hemisphere.  He  says  :  "  These  beings, 
described  as  scarcely  human  in  appearance,  have  such  difficulty  in  pre- 
serving the  vital  balance  in  face  of  the  rapid  escape  of  heat,  that  the  sur- 
plus for  individual  development  is  narrowly  restricted  ;  and,  by  conse- 
quence, the  surplus  for  producing  and  rearing  new  individuals.  Hence 
the  numbers  remain  too  small  for  exhibiting  anything  beyond  the  incip- 
ient social  existence." 


24       An  Introduction  to  the  Study  of  the  Constitution. 

roaming  through  the  woods  without  tents,  and  seeking  tem- 
porary shelter  in  caves  or  the  hollow  trunks  of  trees.  A  slight 
sleigh  carries  all  of  their  effects,  and  they  will  journey  with 
it  thousands  of  miles,  always  retracing  their  steps  with  unerr- 
ing certainty.  Signs  and  natural  objects  constitute  their 
language.  The  woman  in  labor  flees  to  the  forest  and  is 
confined  unaided,  at  the  risk  of  perishing  in  the  snow  or  rain.1 
Situation,  embracing  waters  or  mountain  fastnesses,  or 
swamps  or  plains,  has  had  a  marked  effect  upon  the  human 
being.  Arid  wastes  have  prevented  civilization  and  govern- 
ments from  settling  there ;  indeed,  as  they  encroached,  as  is 
even  now  the  case  in  Central  Asia  and  Northern  Africa, 
civilization  which  previously  existed  disappeared.  In  the 
United  States,  not  to  mention  the  great  Desert  of  Sahara  or 
the  Desert  of  Mongolia,  there  are  vast  wastes,  unpeopled  and 
uncultivable,  which  require  the  investment  of  millions  and  a 
method  of  amelioration  not  yet  begun,  on  the  part  of  the 
Federal  Government,  to  make  them  habitable.  The  relation 
of  mountains  to  social  movement  is  shown  in  Montenegro. 
"  The  Montenegrins  are  the  kinsmen  of  the  Servians  of  the 
Danube,  but  their  life  of  almost  incessant  warfare,  the  eleva- 
tion and  sterility  of  their  country,  as  well  as  the  vicinity  of 
the  Albanians,  have  developed  special  features  among  them. 
The  quiet  life  of  the  plains  is  unknown  to  the  Montenegrin ; 
he  is  violent,  and  ready  at  all  times  to  take  up  arms ;  in  his 
belt  he  carries  a  whole  arsenal  of  pistols  and  knives,  and 
even  when  working  in  the  fields  he  has  a  carbine  by  his  side. 
Until  recently  the  price  of  blood  was  still  exacted,  and  a 
scratch  even  had  to  be  paid  for."  Blood  vengeance  was 
hereditary  among  them  until  quite  recently.  "  Compared 
with  the  Servians  of  the  Danube,  the  Montenegrin  is  a  bar- 
barian."'    Mountainous  life  seems  to  have  begotten  a  hardier, 

1  Reclus,  Earth  and  its  Inhabitants,  Asia,  Vol.  I.,  338,  340,  358,  359. 
See  for  other  illustrations,  Roemer,  Origin  of  the  English  People  and 
Languages,  10,  11. 

2 Reclus,  Earth  and  its  Inhabitants,  Europe,  Vol.  I.,  181.  As  to  the 
Albanians  see  ibid,  pp.  115  seq.,  especially  121. 


Physical  and  Social  Factors  of  Law.  25 

more  valiant  disposition  than  the  life  of  the  plains.     The 
Cantabrians,  whom  Strabo  admired  so  much,  and  who  are 
supposed  to  be  the  ancestors  of  the  Basques,  were  superior  to 
their  neighbors  in  independence  of  spirit  and  valor,  and  the 
descendants  of  the  Basques,  or  such  of  them  as  yet  live  in 
the  valleys  of  the  Pyrenees,  may  still  lay  claim  to  greater 
push   than   their   southerly   neighbors.     The   Swiss  of  the 
Middle  Age  far  excelled  most  of  his  neighbors  in  independence 
of  spirit,  enterprise  and  energy,  though  now,  on  account  of  his 
narrow  and  somewhat  insulated  industrial  and  political  exist- 
ence, he  lags  behind.     The  mountainous  tribes  of  India  are 
distinguished  from  tribes  of  the  plain  and  the  swamp,  by 
greater  activity  and  energy,  though  in  so  far  as  they  are  insu- 
lated and  remain  unaffected  by  English  or  even  Chinese  influ- 
ences they  are  now  less  developed  in  civilization  than  other, 
formerly  inferior,  tribes.     Mountainous  life,  where  accompa- 
nied by  sterile  soil,  is  apt  to  keep  people  backward.    It  tends 
to  keep  warlike  tribes  from  following  industrial  occupations 
and  from  adopting  industrial  customs  and  usages.1     It  tends 
in  numerous  present  localities  to  keep  the  people  who  are 
confined  to  it  in  a  somewhat  primitive  and  backward  condi- 
tion.    Moonshiners,  that  is,  illegal  whiskey  distillers,  are 
usually  people  of  this  class,  who  are  simple  and  unintelligent, 
yet  brave  enough  to  oppose,  however  fruitlessly,  the  United 
States  Government,  in  breaking  up  their  practice.     In  the 
mountainous  regions  of  some  of  the  United  States,  especially 
where  the  soil  is  sterile,  development  is  slow  and  law  is  not 
frequently  invoked.      On  the  other  hand,  high  and  fertile 
plateaux  are  much  sought  after  and  frequently  support  an 
excellent  population.     In  the  higher  lands  of  Palestine  and 
Persia  the  best  population  is  probably  now  to  be  found.    The 
cultivated   mountain   lands    of  Central    Asia   yield    better 
results  and  maintain  a  better  civilization  than  most  of  the 
parched  neighborhoods  on  the  plains. 

In  temperate  climates,  however,  the  plain,  so-called,  is  apt, 

'See  Principles  of  Sociology,  Vol.  I.,  §17. 


26       An  Introduction  to  the  Study  of  the  Constitution. 

upon  the  whole,  to  yield  the  best  results  in  development  and 
civilization.  Earlier  diverse  factors  no  doubt  contributed 
toward  this,  some  of  which  emanated  from  mountain  regions, 
and  some  came  from  less  elevated  torrid  regions  where  vege- 
tation was  varied  and  abundant  and  gave  time  and  room  for 
reflection,  however  limited  that  might  be.1  The  inhabitants 
of  desert  tracts,  as  well  as  those  of  mountain  tracts,  are  diffi- 
cult to  consolidate ;  facility  of  escape,  joined  with  habits  of 
life  adapted  to  sterile  regions,  greatly  hinder  social  subordi- 
nation. Conversely,  social  integration  is  facilitated  within 
a  territory  which,  while  it  is  able  to  support  a  large  popula- 
tion, affords  facilities  for  coercing  the  units  of  that  popula- 
tion ;  especially  if  at  the  same  time  it  is  bounded  by  regions 
offering  little  sustenance,  or  peopled  by  enemies,  or  both.2 
The  long-continued  independence  of  the  Highland  clans  of 
Scotland,  and  of  other  mountain  tribes,  may  be  cited  to  sustain 
the  one  position,  while  Egypt  and  Chaldea  might  be  cited  as 
fulfilling  the  conditions  to  social  integration.  The  prairies 
of  Illinois  facilitated  a  much  more  rapid  growth  than  the 
mountains  of  West  Virginia,  North  Carolina  or  Tennessee. 
And  the  like  may  be  predicated  of  that  vast  territory  now 
covered  by  the  States  of  Kansas,  Nebraska,  and  portions  of 
Missouri,  Iowa,  Texas,  and  other  States.  What  comparison 
can  be  drawn  between  the  mountain  regions  of  the  Rockies, 
or  parallel  ranges,  and  the  valleys  and  plains  of  California  ? 
In  addition  to  the  diverse  influences  exercised  by  moun- 
tain and  valley  or  plain,  one  should  note  other  differences 
due  to  the  configuration  of  territory.  Wet,  marshy  territory 
deters  and  delays  development,  as  is  attested  by  the  swamps 
of  Virginia,  Florida,  Louisiana  and  Arkansas,  while  well- 
drained  and  undulating  country  invites  population  and  thrift. 
The  swamps  of  the  South  are  the  occasion  of  much  backward- 
ness in  their  growth  in  the  United  States.     They  have  kept 

1  On  the  effect  of  an  extensive  flora  and  fauna  see  Principles  of  Sociology, 
Vol.  I.,  §§18,  19. 
J Spencer,  Principles  of  Sociology,  Vol.  I.,  §17. 


Physical  and  Social  Factors  of  Law.  27 

back  civilization  in  southern  Europe,1  and  where  rivers  and 
seas  have  inundated  and  made  wet  and  impassable  subsiding 
territory,  civilization  has  in  some  instances  been  compelled 
to  withdraw.  Rome  to-day  feels  the  detrimental  effects  due 
to  marshy  soil,  and  Memphis,  Tennessee,  may,  probably,  in 
no  small  measure,  trace  the  devastating  effects  of  yellow  fever 
to  the  swamps  of  Arkansas,  to  the  west  of  her.  Sometimes 
swamps  prove  havens  of  refuge  for  an  oppressed  or  con- 
quered people,  and  too  often  they  become  the  asylum  of 
criminals. 

Oceans,  inland  seas,  bays,  estuaries,  lakes  and  rivers  have 
been  the  resort  of  mankind,  and  have  served  as  channels  of 
communication,  of  intercourse,  and  developing  industry  and 
commerce  as  much,  if  not  more  than  any  other  physical 
element  already  referred  to.  The  Nile,  Euphrates,  Tigris, 
Jordan,  Ganges,  Indus,  Irawaddi,  Yang-tse-kiang,  Oxus,  in 
Africa  and  Asia,  mark  out,  upon  an  extended  scale,  the  seats 
of  earliest  known  civilization  and  political  existence.  The 
Volga,  Danube,  Dnieper,  Po,  Tiber,  Rhone,  Rhine,  Elbe, 
Weser,  Seine,  Thames,  etc.,  early  attracted  trading  or  defen- 
sive stations  or  seats.  The  favorable  situation  of  Phoenicia, 
Greece,  Italy,  and  other  lands  contiguous  to  great  bodies  of 
water,  facilitated  the  rise  of  city  commonwealths,  and  the 
commerce  and  agriculture  which  these  presupposed  and 
required.  And  on  this  account,  in  no  small  degree,  we  have 
the  phenomenal  development  which  has  given  us  the  philos- 
ophy, the  arts  of  government,  the  sculpture  and  architecture, 
the  history,  poetry  and  drama,  the  jurisprudence  and  elabo- 
rate sacrificial  cult,  and  the  maritime  customs  which  we 
trace  down  to  these  sections.  Mr.  Grote  says :  "  The  ancient 
philosophers  and  legislators  were  simply  impressed  with  the 
contrast  between  an  inland  and  a  maritime  city ;  in  the  former, 
simplicity  and  uniformity  of  life,  tenacity  of  ancient  habits 
and  dislike  of  what  is  new  or  foreign,  great  force  of  exclu- 
sive sympathy,  and  narrow  range  both  of  objects  and  ideas ; 

1  For  instance,  the  "  Landes,"  in  France. 


28       An  Introduction  to  the  Study  of  the  Constitution. 

in  the  latter,  variety  and  novelty  of  sensations,  expansive 
imagination,  toleration  and  occasional  preference  for  extran- 
eous customs,  greater  activity  of  the  individual  and  corres- 
ponding mutability  of  the  state." 1  In  Northern  and  Western 
Europe,  the  aggregation  of  tribes  occurred  first  in  the  vicinity 
of  bodies  of  water.  And  the  same  rule  holds  regarding  the 
people  who  colonized  the  "Western  Hemisphere.  The  early 
Spanish  and  English  settlers  of  North  America  selected  the 
sea-coast  or  some  river  for  the  purpose  of  settlement.  And 
every  consecutive  step  westward  evinced  the  same  choice. 
Probably  among  the  earliest  words  now  extant  are  the  names 
of  oceans,  seas,  or  important  rivers  and  other  waters,  or  other 
natural  features.*  "  Mountains  and  rivers  still  murmur  the 
voices  of  nations  long  denationalized  or  extirpated."  Towns 
may  be  destroyed,  the  sites  of  human  habitations  may  be 
removed,  but  the  ancient  river-names  are  handed  down  from 
race  to  race;  even  the  names  of  the  eternal  hills  are  less  per- 
manent than  those  of  rivers.3  Over  the  greater  part  of  Europe 
— in  Germany,  France,  Spain — we  find  villages  which  bear 
Teutonic  or  Romanic  names,  standing  on  the  banks  of  streams 
which  still  retain  their  ancient  Celtic  appellations.4 

The  character  of  the  soil  has  likewise  played  a  part  in 
man's  movement.  The  aridity  of  sandy  wastes,  the  flooding 
of  lands,  the  formation  of  alluvial  deposits,  have  contributed 
to  prevent  even  the  pursuit  of  a  pastoral  occupation,  or  have 
furthered  the  development  of  agriculture,  municipal  life  and 
industries.  There  are  no  signs  of  pastoral  or  agricultural  or 
municipal  life  in  the  deserts  of  Turkestan,  Arabia,  Africa,  or 

•History  of  Greece,  Vol.  II.,  p.  296.  See  on  the  influence  of  physical 
configuration,  etc.,  ibid.,  Part  II.,  Chap.  I.,  from  which  the  above  extract 
has  been  taken. 

c  Cf.  Taylor,  Words  and  Places,  pp.  27, 130. 

'Ibid.,  p.  130. 

4 Ibid.  Avon  (Celtic)  means  water;  Wick  (Norse)  means  bay;  Don, 
Dvina,  Danube,  Donau,  Ganges,  all  mean  river.  Volga  means  holy  river. 
Words  and  Places,  p.  330;  R<§clus,  Europe,  Vol.  V.,  346,  365.  Missis- 
sippi means  Father  of  Waters. 


Physical  and  Social  Factors  of  Law.  29 

Mongolia.  And  the  like  may  be  said  of  the  great  western 
desert  region  of  the  United  States.  Yet  warlike  spirit  and 
the  first  forms  of  political  life,  so  far  as  implied  in  a  militant 
career,  are  promoted  by  such  wastes,  at  least  in  Arabia,  and, 
if  "cowboys"  and  Indians  may  be  cited,  perhaps  in  the 
United  States.  The  luxuriance  of  vegetation,  as  well  as  its 
utter  absence,  may  depend  upon  soil,  and  may  seriously 
impede  the  growth  of  civilization ;  as  is  attested  in  tropical 
climes. 

With  these  universal  factors,  as  far  as  the  earth  is  con- 
cerned, man  began  his  career.  And  their  influence  has  been 
instrumental  in  shaping,  in  limiting  man's  activity  ever 
since.  They  are  implied  in  the  evolutionary  environment 
by  which  he  is  conditionated.  Waiving  the  detailed  discus- 
sion of  the  evolutionary  physical  influences  from  without, 
under  discussion,  which  can  best  be  studied  in  the  works  of 
natural  historians,  such  as  Darwin,  Huxley,  Quatrefages, 
Schmidt,  Miiller,  Haeckel,  Komanes,  and  in  the  volumes  of 
Herbert  Spencer  on  biology,  I  have  confined  the  present 
inquiry  to  general  evidences  of  those  influences.  Observing 
how  exceptional,  in  contrast  with  surrounding  nations,  has 
been  the  development  of  the  Swiss,  and  the  rise  and  mainte- 
nance of  their  present  cantonal  form  of  government,  and  the 
prevalence  of  pursuits  which  their  mountain  life  has  superin- 
duced, we  see  there  the  effect  of  what  is  due  to  their  peculiar 
physical  surroundings,  the  result  of  centuries  of  independent 
and  active  life  such  as  their  surroundings  cooperated  to  pro- 
duce. Similar  conditions  have  conspired  to  produce  the 
republic  of  San  Marino  in  Italy.  Situated  in  the  Apennines, 
its  inhabitants  have  been  able  to  maintain  a  separate  continu- 
ous political  existence  through  many  centuries.  "  San  Marino, 
with  some  neighboring  hamlets,  constitutes  a  'most  illustri- 
ous n  republic,  and  is  now  the  only  independent  municipality 
of  Italy."  England  itself  has  had  a  peculiar  growth,  doubt- 
less due  to  its   insular  position.     On  this  account,  coupled 

'Eeclus,  Earth  and  its  Inhabitants,  Europe,  Vol.  I.,  p.  284. 


30       An  Introduction  to  the  Study  of  the  Constitution. 

with  the  limited  area  of  agricultural  lands  it  possesses,  the 
means  of  agriculture  have  been  insufficient  for  the  demands 
of  its  growing  population,  and  the  doctrine  of  free  trade  has 
found  an  abiding  place.  And  this  doctrine  of  free  trade,  in 
its  present  broad  features,  is  perhaps  maintainable  there 
because  of  the  relation  which  England  bears  to  numerous 
colonial  appendages ;  a  relation  which  requires  the  use  of  a 
large  merchant  marine  as  carriers,  for  these  colonial  posses- 
sions are  separated  from  her  by  vast  expanses  of  ocean.  The 
vast  extent  of  territory  in  the  United  States,  embraced  within 
variant  climatic  zones,  facilitated  the  growth  of  an  antagonism 
of  interest  between  the  North  and  the  South ;  the  condition 
of  the  North  conspired  to  make  slavery  unprofitable  and 
undesirable,  while  the  condition  of  the  South  had  an  opposite 
effect.  From  these  conditions  resulted  the  spread  of  manu- 
factures in  the  North,  the  spread  of  plantation  life  in  the 
South.  Another  consequence  was  the  extension  of  the 
doctrine  of  protection,  introduced  by  the  fathers  of  the  Con- 
stitution of  the  United  States,  in  the  North,  for  the  continued 
protection  of  manufacturing  industries,  while  the  South, 
devoted  to  agricultural  interests,  saw  its  advantage  to  lie  in 
a  free  trade.  The  ultimate  outcome  of  this  antagonism  was 
war  and  emancipation.  Now,  the  physical  conditions  of  the 
South  remain  such,  with  a  large  mass  of  emancipated  negro 
population,  as  to  render  agriculture  very  burdensome  and 
frequently  unprofitable.  The  physical  conditions  of  the 
South  have  produced  a  more  inflammable  temperament  than 
is  peculiar  to  the  colder  clime  of  the  North,  and  this,  in  light 
of  the  negro  problem,  does  not  brook  the  same  control,  nor 
present  the  same  self-control,  which  is  possible  to  a  people  in 
colder  climes.  The  problem  is  how  to  deal  properly  with 
these  embarrassing  conditions.  No  doubt  time  will  have  to 
yield  its  modicum  to  its  solution.  Before  it  can  be  properly 
dealt  with  theory  will  have  to  be  less  ambitious  and  aspiring, 
and  physical  conditions  will  have  to  be  taken  into  account. 
Further  evolutionary  effects  of  physical  phenomena  have  been 


Physical  and  Social  Factors  of  Law.  31 

shown  already  in  the  quite  contracted  social  stage  which  the 
tribes  in  the  north  of  Europe,  Asia  and  America  have  attained. 
The  elements  referred  to  have  not  only  left  an  impress 
upon  human  society  and  laws  as  above  indicated,  but  they 
may  be  credited  with  a  more  conspicuous  influence.  The 
jurisdiction  of  admiralty  courts  in  England  depended  at  one 
time,  and  doubtless  still  depends,  upon  the  ebb  and  flow  of  the 
tide.  In  the  United  States  it  depends  upon  the  navigability 
of  waters.  Thus  physical  characteristics  solely  determine  the 
extent  of  this  jurisdiction,  and  this  even  if  we  say,  with  the 
Supreme  Court  of  the  United  States,  that  it  '-'extends  wher- 
ever vessels  float  and  navigation  successfully  aids  com- 
merce," 1  or  with  an  inferior  federal  court  that  it  extends  over 
canals.2  The  courts  are  often  called  upon  to  ascertain  and 
define  this  jurisdiction  by  reference  to  physical  data,  as  in  the 
canal  case.  Thus,  while  contracts  having  relation  to  naviga- 
tion may  be  within  the  jurisdiction  of  federal  courts,  in 
admiralty,  it  is  made  the  duty  of  these  courts  to  determine 
what  are  such  contracts.  A  sailor  has  such  a  contract  for  his 
services  upon  board  ship,  though  the  service  may  involve 
loading  and  unloading  in  port,  but  a  day  laborer  for  a  vessel 
lying  in  port  has  no  maritime  claim.3  What  is  such  a  craft 
as  is  within  such  jurisdiction  is  also  sometimes  an  interesting 
question, — a  barge,  canal-boat,  a  raft  have  been  held  to  be 
such.  Mr.  John  M.  Gould,  of  the  Boston  bar,  has  written  a 
treatise  on  "The  Law  of  Waters,"  including  riparian  rights 
and  public  and  private  rights  in  inland  and  tidal  waters, 
embracing  816  pages.  He  has  chapters  on  "property  in  tide 
waters  at  common  law,"  "property  in  tide  waters  in  this 
country,"  "rivers  and  lakes,"  "the  public  right  of  naviga- 
tion," "riparian  rights,"  etc.  Under  each  one  of  these 
chapters,  interesting,  and  not  always  easy,  questions  are 
treated.     The  ships  belonging  to  and  controlled  by  the  sub- 

'The  Hine  v.  Trevor*,  4  Wall.,  p.  555  ;  The  Montello,  11  Wall.,  p.  411. 
2M.ilony  v.  City  of  Milwaukee,  1  Fed.  Reporter,  p.  611. 
3Cf.  Desty,  Federal  Procedure  (6th  ed.),  p.  69  seq. 


32       An  Introduction  to  the  Study  of  the  Constitution. 

jects  of  a  nation  are  said  to  belong  to  that  nation,  and  the 
jurisdiction  of  that  nation  extends  over  the  navigation  of  the 
ship.  In  other  particulars  the  oceans  are  said  not  to  be 
subject  to  the  exclusive  dominion  of  any  nation,  except  that 
portion  which  lies  within  a  certain  distance  from  the  coast. 
Since  cannon  have  come  into  use,  their  presumed  range  tends 
to  fix  the  distance. 

The  existence  of  water  manifests  itself  in  other  forms. 
The  differences,  based  upon  the  extent  and  character  of  salt 
water  as  distinguished  from  that  of  fresh  water,  are  impor- 
tant.1 "  Beyond  the  point  to  which  the  sea  ebbs  and  flows, 
the  soil  is  prima  facie  in  the  riparian  owners,  and  the  right  of 
fishing  private,"  as  held  in  Ireland.2  And  a  similar  doctrine 
seems  to  prevail  in  England.3  But  in  the  United  States  a 
great  deal  of  diversity  of  opinion  exists  regarding  this  ques- 
tion, depending  upon  the  size  of  the  rivers  and  other,  mostly 
physical,  conditions.4  In  delivering  the  opinion  of  the 
Supreme  Court  of  the  State  of  Tennessee,  in  the  case  of  Elder 
against  Burrus/'  Judge  Turley,  in  behalf  of  the  court,  said : 
"All  laws  are,  or  ought  to  be,  an  adaptation  of  principles  of 
action  to  the  state  or  condition  of  the  country  and  to  its 
moral  and  social  position.  There  are  many  rules  of  action 
recognized  in  England  as  suitable  which  it  would  be  folly 
in  the  extreme,  in  countries  differently  located,  to  recognize 
as  law ;  and,  in  our  opinion  (the)  distinction  between  rivers 
'navigable'  and  'not  navigable/  causing  it  to  depend  upon 
the  ebbing  and  flowing  of  the  tide,  is  one  of  them.  The 
insular  position  of  Great  Britain,  the  short  courses  of  her 
rivers  and  the  well  known  fact  that  there  are  none  of  them 
navigable  above  tide-water  but  for  very  small  craft,  well 
warrants  the  distinction  there  drawn  by  the  common  law." 

\Cf.  Gould,  Waters,  §51. 
3Ir.  Rep.,  2C.  L. ,  p.  143. 
3 Gould,  Waters,  §52. 
*  Ibid.  §56  seg. 

5  6  Humphrey's  Reports,  p.  366.     See  also  Ray,  Negligence  of  Imposed 
Duties,  pp.  286,  373,  386,  444. 


Physical  and  Social  Factors  of  Law.  33 

He  then  speaks  of  countries  where  streams  are  long  and  large 
and  navigable  to  a  great  extent  above  tide-water,  in  which 
the  civil  law  governing  there  has  adopted  a  very  different 
rule.1  In  some  other  particulars  the  common  law  of  Eng- 
land relating  to  waters  is  inapplicable  to  this  country.  For 
instance,  the  right  to  divert  the  water  of  flowingt-strearns, 
which  at  common  law  is  denied  to  one  person  at  the  expense 
of  others  along  the  stream,  is  held  to  exist  in  the  Pacific 
States  with  reference  to  miners,  the  first  appropriator  obtain- 
ing property  therein  for  mining  purposes.2  The  claim  to  the 
water  is,  however,  said  to  be  merely  usufructuary,  it  is  said 
not  to  be  in  the  corpus  of  the  water,  and  continues  only  with 
possession.3  The  only  value  which  water  has  to  the  miner 
would  seem  to  be  while  it  is  in  his  possession  or  under  his 
control ;  after  it  flows  away  beyond  his  reach  it  is  no  longer 
appropriated  by  him.  It  can  only  be  usufructuary.  Water 
may  be  appropriated  for  the  use  of  different  pursuits,  and  may 
be  employed  at  alternate  periods  by  different  appropriators.4 
Subterranean  streams  are  not  subject  to  the  same  doctrines 
regarding  diversion  that  surface  streams  are  at  common  law ; 
neither  are  surface  waters,  falling  waters,  or  snows  subject  to 
the  same  doctrines.5  In  England,  and  probably  in  the 
United  States,  gathering  waters  in  reservoirs  sometimes  in- 
volves extraordinary  care  and  liability;  if  the  reservoir 
bursts  and  the  water  escapes,  creating  damages,  the  party 
owning  and  controlling  it  will  sometimes  be  held  liable  even 
though  there  is  no  negligence,  upon  the  theory  that  one  who 
keeps  on  the  premises  anything  likely  to  do  mischief  if  it 
escapes  (such  as  a  wild  beast)  must  keep  it  from  injuring 

'See  Institutes,  Lib.  II.,  Tit.  I.,  1,  2.  Ftumina  autem  omnia  et 
porlus  publica  sunt.  Ideoque  jus  piscandi  omnibus  commune  est  in  porta 
fiuminibusque.     Tit.  I.,  §2. 

2  Atchison  v.  Peterson,  20  Wall.,  p.  507  seq.  See  also  Coffin  v.  Left 
Hand  Ditch  Co.,  6  Colo.  443. 

3  Eddy  v.  Simpson,  3  California,  p.  249  ;  Kidd  v.  Laird,  15  ibid.,  p.  163. 
4 Smith  v.  O'Hara,  43  ibid.,  p.  371. 

5Cooley,  Torts  (1st  ed.),  pp.  574,  575,  580. 


34       An  Introduction  to  the  Study  of  the  Constitution. 

others  by  escaping  from  its  confinement,  at  his  peril.1  The 
breaking  of  a  dam  which  confined  the  waters  of  an  artificial- 
lake,  used  for  pleasure  purposes,  resulted  in  great  destruction 
of  life  and  property  at  and  around  Johnstown,  Pennsylvania. 
Here  liability  depends  upon  the  form  of  keeping  and  storing 
water — a  subject  that  may  yet  be  prolific  of  considerable 
litigation.  In  New  Orleans,  where  wells  and  cisterns,  and 
perhaps  good  river  water,  for  drinking  purposes,  seem  to  be 
impracticabilities,  does  the  same  liability  exist  with  reference 
to  the  tanks  in  general  use  there?  Freshets  do  not  always 
entail  liability  on  owners  of  dams,  where  they  are  of  an  extra- 
ordinary nature.  Filthy  water  may  be  a  nuisance,2  and  to 
render  drinking  water  unwholesome  may  be  a  crime.3 

Easements  in  air  and  light  can  be  obtained  by  use.4  In 
manv  countries  "there  is  a  natural  right  to  the  use  of  all  the 
light  and  air  which  flow  naturally  to  land ;  but  light  and  air 
differ  from  water  in  this,  that  whereas  the  natural  right  to 
the  flow  of  the  water  of  a  natural  stream  is  paramount,  and 
no  man  is  justified  in  obstructing  that  water  or  preventing  it 
flowing  in  its  ordinary  course  to  the  land  of  other  persons,0 
the  natural  right  to  the  flow  of  light  and  air  is  subordinate 
to  the  right  incident  to  property,  which  every  man  has,  to 
build  on  his  own  land."6  Artificial  light  produced  by 
electricity  and  gas,  and  cold  air  produced  by  artificial  means, 
may  give  rise  to  legislation  and  decisions  peculiar  to  new 
phenomena. 

Offensive  noises,  embracing  the  barking  of  dogs,  noises  of 
billiard  rooms,  blowing  of  steam  whistles,  ringing  of  bells  and 
jarring  of  machinery,  etc.,  may  be  nuisances;7  and  the  inge- 

1  Ryland  v.  Fletcher,  3  House  of  Lords  Cases,  pp.  330,  339 ;  Cahill  v. 
Eastman,  18  Minn.  324. 

2Cooley,  Torts,  p.  567. 

3 Bishop,  Criminal  Law,  Vol.  I.  (5th  ed.),  §491. 

4Goddard,  Easements  (Bennet's  ed.),  p.  28  seq. 

6  We  have  seen  how  this  may  be  modified  by  physical  environment  and 
the  development  of  occupations  peculiar  to  such  environment. 

•Goddard,  Easements,  p.  31. 

'Cooley,  Torts,  pp.  599,600. 


Physical  and  Social  Factors  of  Law.  35 

nuity  of  man  will  hereafter  beget  new  questions  resulting  from 
the  prevalence  of  noises  and  odors  not  yet  settled.  Offensive 
odors,  numerous  in  kind,  such  as  are  produced  by  soap  and 
candle  factories,  livery  stables,  gas  manufactories,  breweries, 
slaughter  houses,  and  the  like,  are  frequently  held  to  be 
nuisances.1  When  epidemics  prevail,  climatic  conditions 
form  the  basis  of  severe  and  stern  regulations  against  the 
existence  of  odors  and  other  things  productive  of  disease. 

From  what  has  been  said  and  the  illustrations  given,  it 
will  be  quite  apparent  that  the  physical  elements  referred  to 
have  had  a  marked  influence  upon  social  growth  and  the 
creation  of  laws,  not  only  in  the  past,  but  also  in  the 
present ;  and  it  is  also  quite  certain  that  they  will  have  as 
great  an  influence  in  the  future  in  the  same  direction. 
Further  instances  will  suggest  themselves.  He  who  deals 
with  all  the  sources  of  law  must  reckon  with  them,  and  the 
problems  of  the  future  in  politics  and  laws  will  not  be  resolv- 
able without  a  consideration  of  the  bearing;;  of  these  factors. 


SECTION   II. — THE   PHYSICAL  AND  SOCIAL  FACTORS   IMPLIED 
IN  INDIVIDUAL  EXISTENCE  AND  IN  HUMAN  AGGREGATES.2 

It  falls  in  with  the  course  of  this  work  to  consider  now 
the  physical  elements  involved  in  individual  existence,  and 
in  the  existence  of  greater  or  smaller  bodies  of  individuals, 
so  far  as  these  bear  upon  laws.  A  few  remarks  will  also  be 
presented  on  the  physical  elements  implied  in  animal  exist- 
ence in  their  relation  to  laws.  It  was  said  in  the  jurispru- 
dence of  Rome  in  reference  to  legal  personality  that,  as  his 
physical  being,  so  does  man's  legal  being  begin  at  birth;  from 
that  time  he  exists  as  person.  Birth  is  the  complete  sever- 
ance from  its  mother  of  a  living  being  of  human  form.  That 
which  is  not  yet  born,  but  is  still  within  the  mother's  womb,  is 

'Cooley,  Torts,  pp.  601,  602. 

2  See  Felix,  Der  Einlluss  tier  Natur,  Sitten  u.  Gebrauche  auf  die  Ent- 
wickelung  des  Eigeuthums. 


36       An  Introduction  to  the  Study  of  the  Constitution. 

not  yet  a  person  ;  the  possibility  of  its  becoming  such  is,  how- 
ever, recognized,  and  therefore  law  has  anticipated  an  unborn 
future  personality.  A  moment  of  life  is  sufficient  to  produce 
important  legal  changes.  With  death  not  only  does  the 
physical  existence  expire,  but  likewise  the  legal  existence.  The 
deceased  one  is  no  longer  capable  of  rights  [rechtsfdhig).1 
Other  systems  of  civilized  law  agree  with  the  Roman  in 
saying  that  a  physical  existence  is  a  prerequisite  to  legal 
capacity  for  rights.  But  they  do  not  agree  with  it,  nor  with 
each  other,  in  determining  when  the  physical  life  begins  that 
shall  yield  the  requisite  legal  status.  Some  made  a  difference 
between  the  sexes,  with  reference  to  embryonic  existence.2 
The  being  when  born  need  not  be  rational.3  In  some  systems 
the  being  must  not  be  a  monstrosity.4  Thus  we  see  how  the 
law  takes  cognizance  of  a  physical  being,  depending  upon 
physical  effects ;  or,  in  other  words,  how  physical  character- 
istics have  left  their  telling  impress.  Nor  does  it  confine 
itself  to  these  details.  By  constitutional  guarantees  preserv- 
ative of  life,  liberty  and  security ;  by  provisions  against 
murder,  mayhem,  assault  and  battery,  rape,  self-annihilation, 
exposition  of  the  body,  it  takes  cognizance  of  the  same 
physical  elements  in  diverse  ways. 

The  operations  of  the  nerves  it  is  forced  to  recognize  in 
treating  of  insanity.  The  capacity  of  a  non  compos  mentis  is 
still  the  subject  of  painful  ignorance  on  the  part  of  judges 
and  lawyers,  who  approach  the  matter  theoretically,  and  not 
as  though  the  mind  were  dependent  upon  the  neural  system. 
Want  of  capacity  of  children,  of  married  women,  and  the 
need  of  legislation  for  prodigals  and  spendthrifts,  all  involve 
mental  characteristics  that  are  based  on  neural  factors. 
Destruction  of  sight  is  classed  under  the  crime  of  mayhem,  and 
it  is  cognizable  in  other  different  forms,  as  for  instance  when 

'Zrodolowki,  Das  rbmische  Privatrecht,  Vol.  I.,  pp.  171,  172. 
2 Compare  Mayer,  Rechte  der  Israeliten,  Athener  u.  Romer,  Vol.  II., 
#121  ;  Blackstone,  Commentaries,  Book  I.,  p.  123  seg. 

3  Holland,  Elements  of  Jurisprudence,  p.  66. 

4  Ibid. 


Physical  and  Social  Factors  of  Law.  37 

the  credibility  of  an  eye-witness,  or  the  negligence  of  a 
company  whose  agent  is  affected  with  color-blindness,  is  in 
question.  Want  of  hearing  is  likewise  an  element  with  which 
the  administration  of  the  law  deals,  as  regards,  for  example, 
negligence  or  the  credibility  of  witnesses.  The  author  has 
personal  knowledge  of  a  case  where  a  deaf  clergyman 
attempted  to  swear  away  the  character  of  another  person,  by 
testifying  to  the  reputation  of  the  latter  for  probity  and  truth- 
fulness. He  seemed  not  to  be  aware  that  he  was  impeached 
by  his  own  deafness.  Taste  has  engendered  the  use  of 
liquor  and  tobacco ;  and  the  use  of  these  has  been  the 
basis  of  much  past  and  will  be  far  more  of  future  legisla- 
tion and  decisions.  It  has  contributed  to  produce  a  marked 
and  somewhat  inconsistent  change  of  views  in  at  least  one 
Supreme  Court  of  the  United  States.  Thus,  the  Supreme 
Court  of  the  State  of  Arkansas,  before  the  subjects  of  prohibi- 
tion and  temperance  were  agitated  in  that  state,  in  determ- 
ining what  was  a  privilege,  and  hence  subject  to  be  specially 
taxed  under  the  constitution  of  the  state,  held  that  only  those 
things  could  be  regarded  as  privileges  which,  at  common  law, 
required  a  franchise  from  the  government,  such  as  the 
right  to  take  toll,  keep  a  market,  fair  or  ferry,  and  it  refused 
to  hold  that  to  keep  a  billiard  saloon  was  a  privilege.1  At 
that  time  intoxicating  liquor  was  in  use  and  was  sold — 
indeed  it  has  been  used  all  over  the  civilized  world  for  cen- 
turies ;  but  after  the  agitation  of  prohibition  and  temperance 
had  brought  about  a  sentiment  unfavorable  to  the  sale  of 
intoxicating  liquors,  the  same  court  held  the  same  provision 
to  permit  the  imposition  of  an  almost  prohibitory  special  tax 
on  the  sale  of  such  liquors.2  It  was  abuse  in  the  use  of 
liquors,  and  the  effect  of  such  use  upon  the  consumer  and 
upon  interested  wives  and  children,  that  produced  the  senti- 
ment for  and  enactment  of  prohibitory  legislation.  These 
are  factors  implying  mostly  physical  or  material  elements. 

1  Stevens  v.   State,  2   Arkansas  Reports,   p.  291  ;    Gibson  v.  Pulaski 
County,  ibid.,  p.  309. 

9 26  Arkansas  Reports,  p.  523  ;  27  ibid.,  p.  625  ;  38  ibid.,  641. 


38       An  Introduction  to  the  Study  of  the  Constitution. 

It  may  not  be  out  of  place  to  add,  that  the  theories  of  prohi- 
bition are  forcing  legislation  beyond  the  need  of  these  evils  ; 
legislators  lose  sight  of  the  ineradicability  of  the  desire  to  use, 
and  the  occasional  absolute  need  of  alcoholic  stimulants,  and 
by  doing  so  they  become  instrumental  in  making  laws  in  dis- 
regard of  physical  elements.  The  consequences  are  as  yet 
problematical.  But  an  insidious  disregard  of  the  law  may 
result,  which  will  tend  in  the  long  run  to  become  detrimental 
to  that  respect  for  law  upon  which  good  government  depends. 

In  many  other  ways  laws  take  note  of  the  individual  phys- 
ical personality.  As  already  suggested,  death  or  dissolution 
begets  new  rights  and  duties  in  the  law.  It  may  increase  the 
widow's  and  children's  means  under  administration  and 
dower  laws,  or  under  acts  like  that  of  Lord  Campbell,  giving 
causes  of  action  against  railroads  where  death  has  been  pro- 
duced by  their  fault.  In  the  shape  of  life  tables,  life  annu- 
ities and  life  insurance,  the  law  takes  cognizance  of  individual 
existence,  as  it  does  in  those  constitutional  guarantees  already 
mentioned  relating  to  life  and  liberty  and  property — life, 
liberty  and  property  which  imply  fresh,  unpolluted  air  and 
water,  under  certain  restrictions,  and  a  place  to  move  in ; 
which  imply,  moreover,  restriction  of  prior  rights  growing 
out  of  the  spread  of  cities  upon  occupations  which  thus 
become  detrimental  to  the  peace  and  comfort  of  others. 

What  must,  however,  not  be  lost  sight  of  is  that  man  alone, 
unassociated,  could  never  have  created  a  custom  or  legal 
rule;  had  he  lived  but  a  single  member  of  his  kind  upon  the 
face  of  the  earth,  he  would  never  have  formulated  or  breathed 
into  conscious  life  a  custom  or  a  law.  Some  sort  of  aggrega- 
tion between  human  beings  is  requisite  before  a  custom  or 
law  can  arise. 

There  is  no  disagreement  among  those  who  are  authorities, 
respecting  the  fact  that  man  has  always  been  a  gregarious 
animal,1  in  this  respect  showing  analogies,  though  superior 

1  Compare  Spencer,  Principles  of  Sociology,  Vol.  I.,  Chap.  I.,  and  suc- 
ceeding chapters;  Lindsay,  Mind  in  the  Lower  Animals,  Vol.  I.,  Chap. 
XXI.     See  last  two  chapters  of  this  work. 


Physical  and  Social  Factors  of  Law.  39 

in  kind,  to  the  characteristics  of  other  animals.  Mr.  Leslie 
Stephen  forcibly  reminds  us  that  when  we  speak  of  man  it  is 
of  man  with  his  normal  accompaniments.  "  To  say  that 
man  would  be  better  or  worse  if  he  had  no  stomach  is  to  put 
together  words  which  have  no  real  meaning  whatever.  .  .  . 
You  might  describe  a  statue  as  a  man  without  organs,  but 
this  is  simply  to  play  with  words  unless  we  confine  our 
reasoning  to  properties  dependent  exclusively  upon  external 
forms.  By  '  man '  we  mean  a  being  belonging  to  a  given 
class  and  varying  within  the  limits  determined  by  the  essen- 
tial properties  of  the  class;  and  amongst  these  essential 
properties  we  must,  of  course,  reckon  dependence  upon  a 
race."1  The  logical  outcome  seems  to  be  that  "  every  man 
is  both  an  individual  and  a  social  product,  and  every  instinct 
both  social  and  self-regarding.""' 

As  man  started  upon  his  earthly  career  in  company  with 
others,  forming  with  them  some  aggregate  possessed  of  some 
social  instinct,  it  may  be  well  to  idealize  the  kind  of  instinct 
the  earliest  form  of  aggregation  presents  to  us.  Mankind  is 
passing  from  the  age  of  unconscious  to  that  of  conscious 
progress,3  and  the  beginning  of  organization,  like  that  among 
animals  and  insects,  was  not  the  result  of  reflection,  but  the 
outcome  of  an  impulse.  The  earliest,  most  primitive  creature 
is  not  entirely  devoid  of  some  kind  or  form  of  association. 
As  far  as  we  can  see  into  the  most  primitive  condition,  it 
appears  that  the  human  infant  has  been  helpless  longer, 
requiring  maternal  care  for  a  longer  period  than  other 
animals.  So  it  appears,  from  the  outcome,  that  the  feeling 
of  maternal  instinct  lasted  longer.  "  The  prolonged  help- 
lessness of  the  offspring,"  says  Mr.  Fiske,  "  must  keep  the 
parents  together  for  longer  periods  in  successive  epochs  ; 
and  when  the  association  is  so  long  kept  up  that  the  older 
children  are  growing  mature  while  the  younger  ones  need 
protection,  the  family  relations  begin  to  become  permanent. 

Science  of  Ethics,  95. 

^Ibid.,  96. 

3Tylor,  Anthropology,  439. 


40       An  Introduction  to  the  Study  of  the  Constitution. 

The  parents  have  lived  so  long  in  company  that  to  seek  new 
companionships  involves  some  disturbance  of  ingrained 
habits."1  What  follows  in  the  evolution  of  other  social  forms 
is  thus  outlined  by  the  same  author  r  while  the  parents  are 
thus  becoming  more  attached  to  the  family  group,  "  the  older 
sons  are  more  likely  to  continue  their  original  association 
with  each  other  than  to  establish  association  with  strangers, 
since  they  have  common  objects  to  achieve  and  common 
enmities,  bequeathed  and  acquired,  with  neighboring  fam- 
ilies. As  the  parent  dies,  the  headship  of  the  family  thus 
established  devolves  upon  the  oldest,  or  bravest,  or  most 
sagacious  male  remaining.  Thus  the  little  group  gradually 
becomes  a  clan,  the  members  of  which  are  united  by  ties  con- 
siderably stronger  than  those  which  ally  them  to  members  of 
adjacent  clans,  with  whom  they  may  indeed  combine  to  resist 
the  aggressions  of  yet  further  outlying  clans  or  of  formidable 
beasts,  but  to  whom  their  feelings  are  usually  those  of  hostile 
rivalry.  It  remains  to  add  that  the  family  groups  thus  con- 
stituted differ  widely  in  many  respects  from  modern  families, 
and  do  not  afford  the  materials  for  an  idyllic  picture  of 
primeval  life.  Though  always  ready  to  combine  against  the 
attack  of  a  neighboring  clan,  the  members  of  the  group  are 
by  no  means  indisposed  to  fight  among  themselves.  The 
sociality  is  but  nascent;  infants  are  drowned,  wives  are 
beaten  to  death,  and  there  are  deadly  quarrels  between 
brothers.  In  the  primitive  clan  all  the  women  are  the 
wives  of  all  the  men."  "This  state  of  things  is  just  that 
which  natural  selection  must  assist  and  maintain  so  long  as 
the  incipient  community  is  small  and  encompassed  by 
dangers."3     Some    matters    remain    unconsidered    by    Mr. 

•John  Piske,  Outlines  of  Cosmic  Philosophy,  Vol.  II.,  344;  Herbert 
Spencer,  Principles  of  Sociology,  Vol.  I.,  Part  III.,  Chap.  II.  See  Chap. 
III.,  Sec.  II.,  post,  for  a  discussion  of  domestic  relations. 

2Fiske,  344,  345. 

3  See  more  fully  Chap.  III.,  Sec.  II.,  and  Chap.  IV., post.  W.  Robertson 
Smith  (Kinship  in  Arabia)  has  revealed  a  great  deal  of  valuable  infor- 
mation upon  the  early  matriarchal  and  subsequent  patriarchal  condition 
of  the  early  Arabians  and  Hebrews. 


Physical  and  Social  Factors  of  Law.  41 

Fiske  in  the  above  extract  that  modify  his  views.  The 
physical  environment  of  man  may  in  one  locality  be  favorable 
to  the  maintenance  of  life,  elsewhere  it  may  be  unfavor- 
able ;  the  one  may  at  certain  times  and  under  certain  circum- 
stances contribute  toward  aggregation  of  families,  or  of 
members  of  families  into  tribes  or  clans,  and  the  other  may 
tend  to  produce  an  opposite  result.  If  beasts  of  prey  or 
other  enemies  do  not  threaten  and  the  means  of  subsistence 
are  large,  a  primitive  group  may  hold  together  and  grow, 
when  the  opposite  result  would  have  to  take  place  if  the 
means  of  subsistence  were  hard  to  find.  In  the  former  event 
children  might  be  permitted  to  live,  when  in  the  latter 
infanticide  might  prevail.  In  the  regions  of  Arctic  ice 
infanticide  and  a  life  of  small  family  groups  would  prevail, 
while  in  torrid  regions  tribal  life  would  be  matured.  While 
the  conditions  of  labor  are  unfavorable,  as  in  the  icy  regions, 
few  groups,  and  these  far  between,  might  live  together  in 
peace,  whereas  elsewhere  multiplying  numbers  would  pro- 
duce conflicts.  Mountainous  life  might  produce,  as  already 
seen  in  the  preceding  section,  a  spirit  of  adventure  and  war 
which  in  more  favored  regions  would  be  greeted  by  the 
feebleness  of  an  easier,  more  peaceful  life.  We  may  say, 
however,  that  sociality  will  begin  where,  through  variation, 
there  is  less  tendency  than  usual  for  the  individual  to  dis- 
perse widely  ;  and  that,  allowing  for  further  variation,  man- 
kind will  tend,  by  survival  of  the  fittest  through  adaptation,  to 
preserve  the  largest,  best  aggregated  social  forms  or  bodies. 
The  impulse  that  makes  all  animal  life  struggle  to  maintain  ex- 
istence, in  mankind  assumes  new  phases  with  the  development 
of  its  gregarious  tendency.  Not  less  than  gregarious  animals 
does  man,  sooner  or  later,  obtain  pleasure  from  the  presence 
of  his  mates  and  by  their  actions — a  pleasure  which  is  but  a 
phase  of  that  satisfaction  in  existence  which  the  lower  animal 
feels ;  and  the  maternal  and  dependent  feelings  which  the 
female  animal  and  its  young  will  feel  are  surely  not  wanting 
among  at  least  some  primitive  human  beings.     And  these 


42       An  Introduction  to  the  Study  of  the  Constitution. 

feelings  are  the  early  aspect  of  what  later,  in  the  course  of 
later  impact,  growth,  change  and  experience,  become  sym- 
pathy  and  love  and  family  affections,  to  subserve  which  the 
customs  and  laws  came  into  existence  that  now,  in  their  latest 
form,  constitute  the  basis  of  our  text-books  on  "  Domestic 
Relations."1  While  clan  life  is  a  form  of  aggregation  which 
does  not  follow  quickly  upon  the  heels  of  the  most  primitive 
social  forms,  Mr.  Fiske's  outline,  with  some  qualifications, 
is  a  fair  summation  of  early  human  social  development ;  and 
it  shows  that  aggregation  is  a  spontaneous  product,  the  result 
mostly,  if  not  entirely,  of  physical  factors. 

It  is  interesting  to  observe  how  far  savage   tribes   have 
advanced  to  a  state  of  legality.    In  the  note2  we  give  a  list  of 


1  See  Chap.  III.,  Sec.  II., post,  for  fuller  views  on  this  subject. 

sMr.  Lindsay's  researches  covered  inquiries  into  the  moral  condition  of 
savages  or  primitive  races  in  East,  West,  South,  and  Central  Africa, 
Ceylon,  Malay  Peninsula,  Andaman  Islands,  North  and  South  America, 
Australasia,  New  Zealand  and  the  Fiji  Islands.  He  sums  up  his  evidence 
in  the  following  list  of  negative  and  positive  moral  qualities  or  conditions  : 

Negative  conditions : 

1.  No  sense  of  sexual  decency,  modesty,  chastity,  virtue,  purity,  pro- 

priety or  shame. 

2.  No  marriage  tie  or  rite. 

3.  No  family  arrangements. 

4.  No  love — maternal,  paternal,  conjugal,  parental,  filial  or  fraternal. 

5.  No  idea  of  paternity  or  of  other  relationships. 

6.  No  kindness  to  or  consideration  for  each  other,  whatever  the 

natural  or  other  relationship. 

7.  No  respect  for  woman  or  sex. 

8.  No  compassion,  pity,  sympathy  for  suffering. 

9.  No  mercy. 

10.  No  regret,  remorse,  self-reproach,  or  repentance. 

11.  No  gratitude  or  other  form  of  response  to  kindness  received. 

12.  No  sense  of  guilt  or  criminality. 

13.  No  idea  of  duty  or  responsibility. 

14.  No  conception  of  right  and  wrong,  of  moral  good  or  evil. 

15.  No  sense  of  justice  or  equity. 

16.  No  respect  for  the  rights  of  property  or  possession.     (See  Chap. 

III.,  Sec.  I., post.) 

17.  No  self-denial  or  self-control. 

18.  No  knowledge  of  truth. 


Physical  and  Social  Factors  of  Law.  43 

moral  qualities  discovered  among  them,  as  noted  by  W. 
Lauder  Lindsay.  The  list  given  does  not  exhibit  a  note- 
worthy moral  status.  It  is  a  status  which  the  same  author, 
in  comparing  it  with  that  of  the  lower  animals,  considers  in 
no  way  superior  to  that  of  animals.1  He  says :  "  It  has  to 
be  remarked  that  the  moral  virtues  are  illustrated  mainly  by 
or  in  those  animals  that  have  directly  or  indirectly  received 
their  moral  training  from  man — such  animals  as  the  dog, 
elephant  and  horse."  He  could  have  safely  added  others.2 
From  which  we  confirm  the  previous  argument,  that  the 
early  aggregations  and  the  resulting  customs  are  of  spontane- 
ous production,  just  as  are  the  animal's,  and  are  not  due  to 
any  self-conscious  reflection  and  resulting  effort.  It  may  be 
that  already  far  back  in  human  history  a  low  moral  status  may, 

19.  No  honesty. 

20.  No  ideas  of  honor. 

21.  No  generosity,  magnanimity,  or  charity. 

22.  No  respect  for  or  obedience   to  authority  of  any  kind,  unless 

embodied  in  the  form  of  superior  power. 
Positive  conditions: 

1.  Indiscriminate  or  promiscuous  association,  mingling  or  inter- 

course of  the  sexes,  and  of  all  ages. 

2.  Lust,  lewdness  and  debauchery. 

3.  Desertion,  including  exposure  and  mutilation  of  or  insults  to  the 

young  and  aged,  sick,  weak,  or  disabled  and  dead. 

4.  Cruelty  to,  including  the  torture  of  captives  or  enemies,  and 

pleasure  in  witnessing  the  sufferings  of  the  victims. 

5.  Bloodthirstiness,  propensity  to  murder,  including  cannibalism. 

6.  Dishonesty,  envy,  covetousness,  greed,  proneness  to  theft,  robbery, 

plunder  of  all  kinds  and  degrees. 

7.  Prevalence  of  perjury,  mendacity,  lying. 

8.  Selfishness. 

9.  Ingratitude,  including  the  repayment  of  good  with  evil. 

10.  Treachery,  deceit,  cunning. 

11.  Dominance  of  the  instincts,  appetites  and  passions.    (Mind  in  the 

Lower  Animals,  Vol.  I.,  pp.  164-166.) 

1  Ibid.,  Chap.  II.,  p.  175  seq. 

2  As  ants  (Romanes,  Animal  Intelligence,  p.  58  seq.) ;  bees,  Ibid.,  p.  155 
seq.  ;  monkeys,  Ibid.,  p.  471  seq.  See  Lubbock,  Ants,  Bees  and  Wasps, 
pp.  23,  285  seq.  Spencer,  Principles  of  Ethics,  Justice,  Chaps.  I.  to  III. 
inclusive. 


44       An  Introduction  to  the  Study  of  the  Constitution. 

where  the  environment  was  favorable,  have  become  somewhat 
ameliorated,  and  customs  have  obtained  a  better  character.1 
And  the  time  did  come  when  not  only  household  or  tribal 
life  gave  place  to  a  larger  clan  life,  but  likewise  when  patri- 
archal life  was  succeeded  by  municipal  organization,  and  when 
municipal  organization  became  merged  into  a  still  larger 
aggregate.2 

The  aggregation  was  in  each  instance  builded  upon  physi- 
cal units,  whose  activity,  though  become  more  conscious  and 
intelligent,  was  largely  a  spontaneous  impulse  that  moved  on 
and  spent  its  force  in  producing  social  effects.  The  process 
of  cohesion  by  which  a  family — or  rather  a  group  centered 
around  some  woman — became  a  larger  group  or  the  basis  of 
other  independent  groups,  might  occur  among  savages,  but 
it  was  more  apt  to  occur  among  people  who  had  attained 
some  mode  of  a  settled  life,  as  the  tribes  of  Germany  and 
Gaul.  A  warlike  tribe  might  cohere,  based  on  some  kind 
of  association  around  or  descent  from  a  woman,  and  driven 
by  a  disposition  for  adventure,  make  war  and  predatory 
excursions  on  others — a  disposition  most  likely  created  by 
scarcity  of  sustenance  and  animal  desire  after  females.  In 
countries  where  the  soil  and  nature  yielded  a  prolific  supply 
of  berries  or  roots  or  plants,  life  would  be  less  militant,  and 
a  rude  mode  of  agriculture,  by  digging  for  roots,  etc.,  would 
be  introduced.  The  warlike  overcoming  the  more  peaceable 
and  better-supplied  groups  and  making  slaves  of  their 
women  and  others,  ultimately  yielded  large  aggregates  and  a 
system  of  slave,  labor.  Where  flocks  could  be  herded,  these 
would  be  attended  to  by  slaves  or  the  women ;  where  roots 
had  to  be  dug  or  a  supply  of  berries  secured  by  some  care 
and  attention,  a  primitive  form  of  labor  by  slaves  and  women 
was  introduced.  One  need  or  one  possibility  brought  the  other. 
The  larger  group  involved  militancy,  slavery,  chase,  and  the 

1  See  Tylor,  Anthropology,  Chap.  XVI.  ;  Lubbock,  Prehistoric  Times, 
pp.  580-586. 

2  See  later  chapters  of  this  work. 


Physical  and  Social  Factors  of  Law.  45 

tending  of  herds  or  that  kind  of  agriculture  which  consists 
of  digging  for  roots  by  means  of  sticks.  If  any  thought  is 
involved  in  this  process,  it  is  that  form  of  thought  which 
comes  from  practice  and  usage,  and  is  retained  because  the 
brain  retains  it  in  the  form  of  memory.  Usage  and  practice, 
combined  with  the  most  efficient  resisting  forms  of  aggrega- 
tion, are  the  means  of  survival.  These  are  natural  elements 
whose  evolution  and  survival  are  implied  in  the  battle  of 
life.  And  with  larger  forms  of  aggregation,  assuming  the 
shape  of  clans,  or  towns,  or  cities,  or  nations,  a  greater  elabo- 
ration of  channels  of  communication,  of  preservative  energy, 
of  divisions  of  work  and  an  increasing  cohesive  power  re- 
sulted.1 "  It  is  a  principle  in  physics  that,  since  the  force 
with  which  a  body  resists  strains  increases  as  the  squares  of 
its  dimensions,  its  power  of  maintaining  its  integrity  becomes 
relatively  less  as  its  mass  becomes  greater.  Something  analo- 
gous may  be  said  of  societies.  Small  aggregates  only  can  hold 
together  while  cohesion  is  feeble ;  and  successively  larger  aggre- 
gates become  possible  only  as  the  greater  strains  implied  are  met 
by  that  greater  cohesion  which  results  from  an  adapted  human 
nature  and  a  resulting  development  of  social  organization." 
On  the  other  hand,  "  as  social  integration  advances,  the 
increasing  aggregates  exercise  increasing  restraints  over 
their  units."  "The  forces  by  which  aggregates  keep  their 
units  together  are  at  first  feeble  and,  becoming  strenuous  at 
a  certain  stage  of  social  evolution,  afterwards  relax,  or  rather, 
change  their  forms."3 

The  opening  and  maintenance  of  roads  and  bridges  and 
the  establishment  of  fortified  places  constitute  features  of 
increasing  aggregation  and  distribution  of  population,  to 
which  society  owes  a  vast  deal  of  communication,  transpor- 
tation, locomotion,  and  the  establishment  of  cities.  The  need 
of  these  was  felt  early  in  the  history  of  our  modern  nations, 

'Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Political  Insti- 
tutions. 
2  Principles  of  Sociology,  Vol.  II.,  §§451,  452. 


46       An  Introduction  to  the  Study  of  the  Constitution. 

as  is  evidenced  by  the  importance  which  was  attached  to  the 
trinoda  necessitas,  or  threefold  duty  required  of  the  most 
favored,  and  enforced  with  considerable  strictness,  of  render- 
ing military  service,  repairing  bridges  and  maintaining  fortifi- 
cations j1  also  to  maintain  the  roads  and  keep  watch  and 
ward.2 

Cities,  moreover,  do  not  find  their  origin  only  at  strong 
places  of  defence.3  Other  natural  conditions,  as  we  have 
seen  and  shall  further  see,4  co-operated  to  produce  them, 
such  as  the  proximity  of  a  body  of  water,  or  a  road.  Many 
cities  date  their  beginning  from  the  fact  that  they  were  fording 
places, — such  as  Oxford,  Here/ore/,  Hertford }  Bedford,  Strat- 
ford-on-Avon,  Stafford,  Walling/brd,  Guilford,  Chelmsford, 
lelford,  ~Rowford,  Aylesford,  Dartford,  Frankfurt,  Liemforde, 
etc.5  "At  the  spot  where  the  Roman  road  crosses  the  Aire,  the 
name  of  Pontefract  (adpontemfractum)  reminds  us  that  the 
broken  Roman  bridge  must  have  remained  unrepaired  during 
a  period  long  enough  for  the  naturalization  of  the  new 
name."6  A  number  of  towns  still  show  their  proximity  to 
early  roads  and  bridges.  The  Danish  word  gata  means  a 
street  or  road,  and  in  Scandinavian  districts  of  Great  Britain 
the  word  gate  designates  the  same  thing;  therefore,  wThen  we 
see  towns  within  such  districts  having  streets  or  roads  ending 
with  gate,  we  may  affirm  their  proximity  to  roads  ;  of  which 
Briggate  or  Bridge  street  and  Kirkgate  or  Church  street  in 

1  Cf.  Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.,  p.  76,  note  4,  also  pp.  95, 
105,  184,  190;  Maurer,  Markenverfassung,  £91  ;  same,  Hofverfassung, 
Vol.  I.,  §143  ;  Waitz,  Deutsche  Verfassungsgeschichte,  Vol.  IV.,  p.  25 
seq.;  Stubbs,  Select  Charters,  p.  153. 

2Zoepfl,  Deutsche  Rechtsgeschichte,  Vol.  II.,  §40,  IV.  ;  Schrader, 
Handelsg.  u.  Warenkunde,  Chap.  I. 

sCf.  Taylor,  Words  and  Places,  pp.  81,  148,  149,  172,  333;  Roemer, 
Origins  of  the  English  People  and  English  Language,  pp.  124,  187,  466  ; 
Woolsey,  Political  Science,  ?153;  Arnold,  Verf.-Geschichte  der  deutschen 
Freistadte,  Vol.  I.,  p.  3  ;  Freeman,  Eng.  Towns  and  Districts,  passim. 

4 Chap.  IV., post. 

6  Taylor,  Words  and  Places,  pp.  169,  331.     See  Chap.  IV.,  post. 

6  Ibid. 


Physical  and  Social  Factors  of  Law.  47 

Leeds  are  evidences.1  Brixton,  Bruges,  Innspruck,  Wey- 
bridge,  Briancon  are  derived  from  the  vicinity  of  bridges.2 
The  influence  of  roads,  bridges  and  cities  upon  laws  still 
remains  manifold. 

The  maintenance  of  roads,  the  travel  upon  roads,  the 
casualties  upon  roads,  including  railroads,  their  use  as  post 
and  military  roads,  as  channels  of  communication  between 
place  and  place,  and  the  beneficial  or  blighting  effect  their 
management  may  entail,  form  the  basis  of  a  vast  amount  of 
legislation  and  many  decisions.  Relative  to  railroads  alone, 
governments  are  occupied  every  year  with  measures  to  regulate 
them,  under  forms  of  incorporation,  or  police  regulation,  or 
the  exercise  of  eminent  domain.3  The  management  of  these 
extraordinary  media  of  commerce  has  called  into  existence  at 
the  instance  of  receivers  of  courts,  principally  in  the  United 
States,  certificates  of  indebtedness,  issued  under  the  orders  of 
the  court,  with  the  assent  of  the  litigating  beneficiaries,  for 
the  purpose  of  maintaining  and  operating  railroads.  The 
exercise  of  the  power  is  partly  based  upon  the  obligations  of 
a  common  carrier  and  a  mail  carrier  which  the  court  assumes 
when  it  takes  possession  and,  through  its  receiver,  manages  a 
railroad  ;  it  is  also  grounded,  among  other  things,  in  that  rule 
of  public  economy  which  requires  the  highways  to  be  kept  in 
repair.  "  The  public  is  entitled  to  protection  in  the  continued 
use  of  the  railway  as  a  king's  highway."  Though  the 
beneficiaries  are  usually  required  to  assent  to  such  orders, 
practically  the  proceeds  of  the  certificates  are  employed  for 
many  things  not  for  their  benefit,  and  their  consent  is  "only 
colorable  and  constructive  .  .  .     The  schoolboy  creeps  like  a 

'Taylor,  Words  and  Places,  p.  168.  See  same  authority  for  other 
evidences,  pp.  331,  332. 

2  Ibid.  332. 

3  Upon  this  subject  consult  Schrader,  Handelsg.  u.  Warenkunde,  Chap. 
L;  Herbert  Spencer,  Moral,  Political  and  Aesthetic  Essays,  p.  251,  Rail- 
way Morals  and  Railway  Policy  ;  see  also  Wharton,  American  Law, 
§§422,  446,  482,  489,  490;  Pierce  on  Railroads;  Green's  Brice,  Ultra 
Vires  ;  Mills,  Eminent  Domain  ;  Woolsey,  Political  Science,  Vol.  I.,  pp. 
40,221;  Vol.  II.,  pp.  399-401. 


48        An  Introduction  to  the  Study  of  the  Constitution. 

snail  unwillingly  to  school.  In  some  sense  he  goes  volun- 
tarily, and  so  consents  to  go  because  he  is  compelled  and 
cannot  make  a  successful  resistance.  In  a  majority  of  cases 
where  receiver's  certificates  are  made  a  prior  lien  upon  rail- 
road property,  some  portion  at  least  of  the  holders  of  the 
senior  liens  give  no  more  voluntary  consent  to  the  issue  than 
this.  They  assent  because  it  is  idle  to  refuse."1  These  are 
an  entirely  new  species  of  commercial  paper.2  I  cannot 
resist  the  temptation  to  refer  to  another  birth  or  product  of 
railroads.  It  is  an  old  doctrine  among  English  and  American 
lawyers  that  when  a  trespasser,  whatever  his  good  faith  may 
be,  attaches  a  thing  to  the  soil  of  another,  the  thing  so  attached 
becomes  the  property  of  the  owner  of  the  soil.  That  rule  has 
been  slowly  modified  ;3  and  now  in  the  case  of  railroads  it 
has  been  wholly  departed  from,  notwithstanding  that  railroad 
companies  exercise  the  right  of  eminent  domain  to  acquire 
lands  against  the  will  of  the  owner,  and  are  required  to  pursue 
the  course  of  condemnation  prescribed  to  them  by  law.  The 
question  has  invariably  arisen  in  reference  to  the  action  of 
railroad  companies  in  putting  roadbeds  and  rails — a  track — 
upon  another's  lands  either  without  having  previously  con- 
demned the  lands  in  the  mode  provided  by  law,  or  have  pro- 
ceeded in  condemning  them  against  the  wrong  person.  The 
courts  in  the  United  States,  with  a  few  exceptions,  now  hold 
that  the  owner  cannot  compel  a  railroad  company  to  pay  him 
for  a  track  it  located  upon  his  land  under  the  circumstances 
mentioned,  even  though  he  in  no  way  encouraged  it.4     The 

'Chas.  Fiske  Beach,  Jr.,  Receiver's  Certificates,  3  Law  Quarterly  Re- 
view, pp.  430,  431,  439  ;  also  now  to  be  found  in  the  same  author's  work 
on  Receivers,  chapter  on  Receiver's  Certificates.  See  also  to  same  effect, 
Meyer  v.  Johnson,  53  Ala.,  pp.  237,  348. 

2  See  same  article  of  Mr.  Beach. 

3  See  Jones  on  Liens,  Vol.  II.,  §?1131-1139  ;  90  N.  C.  Ill ;  30  Md.  352  ; 
2  Pet.  137 ;  20  Kans.  434  ;  77  N.  C.  188  ;  2  Dev.  376 ;  Schouler,  Per- 
sonal Property,  §§114—118. 

470  Ala.  227,  232;  87  Pa.  St.  28  ;  34  Kans.  158;  42  Wis.  538;  20  Fla. 
616  ;  63  Miss.  380  ;  14  Oregon,  519  ;  Pierce  on  Railroads,  p.  219  ;  15  S. 
W.  Rep.  188 ;  see  contra,  36  Ind.  463  ;  47  Cal.  515  ;  31  N.  J.  Eq.  31 ;  97 
Mass.  279  ;  124  Mass.  118  ;  35  Ohio  St.  531. 


Physical  and  Social  Factors  of  Law.  49 

courts  say,  quoting  from  the  Oregon  case  referred  to  in  the 
note:  "In  modern  times,  for  the  encouragement  of  trade, 
manufactories  and  transportation,  and  owing,  no  doubt,  in 
part  to  the  increased  value  and  importance  of  personal 
property,  many  things  are  now  considered  as  personalty 
which  are  attached  to  the  soil.  The  necessities  and  conve- 
niences of  an  advancing  civilization  have  demanded  a  relaxa- 
tion of  the  strict  rule,  so  that  now  attachment  to  the  soil  is 
only  one  of  the  several  conditions  to  help  in  determining 
whether  a  given  thing  belongs  to  the  realty  ....  In  view 
of  the  rights  delegated  by  the  state  to  [the  railroad  corpora- 
tion in  question] ;  the  purposes  for  which  they  are  conferred ; 
the  public  use  for  which  the  land  is  condemned  ;  the  just  com- 
pensation required  to  be  paid  for  its  appropriation ;  and  the 
great  interest  the  public  has  in  the  successful  operation  of 
the  road — it  seems  to  us  that  these  elements  plainly  distin- 
guish the  acts  of  a  corporation,  although  technically  a  tres- 
passer, in  building  its  road  upon  lands  without  proper 
authority  therefor,  from  the  acts  of  a  common  trespasser,  in 
affixing  chattels  [i.  e.  roadbed  and  rails]  to  the  freehold, 
and  to  render  inapplicable  the  strict  rule  of  law  which  would 
treat  such  improvements  as  fixtures  and  part  of  the  realty."1 
Here  then  is  another  consequence,  unforeseen,  of  railroad 
construction.  It  will  be  noted  how  this  opinion  indicates 
the  interdependence  between  railroads  and  other  physical 
creations  of  social  aggregates;  also  the  reference  to  physical 
elements  contained  in  this  opinion  will  be  noted,  such  as 
"personalty,"  "soil,"  "trade,"  "transportation,"  "public 
use,"  "  compensation,"  "  appropriation,"  etc. 

Among  the  commonwealths  of  North  America  commissions 
are  being  created  to  regulate  the  management  and  fares  of 
railroads,  and  Congress  has  also  attempted  the  same  upon 
what  must  be  regarded  as  an  extraordinary  scale  of  magni- 
tude.    Whether  this  will  prove  beneficial  cannot  be  foretold 

'See  the  case  in  14  Oregon  519;  also  reported  in  13  Pacific  Reporter, 
p.  300.  And  also  Jones  v.  R.  R.  Co.,  70  Ala.  227,  232  ;  Justice  v.  R.  R. 
Co.,  87  Pa.  St.  28  ;  Newgass  v.  R.  R.  Co.,  54  Ark.  140,  146. 


50       An  Introduction  to  the  Study  of  the  Constitution. 

with  any  certainty.  These  measures  involve  a  hasty  and 
perhaps  too  extensive  an  artificial  regimen  over  railroads — 
a  regimen  that  is  producing  consolidation  of  roads  upon 
gigantic  scales  of  magnitude,  and  which  may  culminate  in 
centering  more  power  over  larger  territory,  by  means  of  these 
expeditious  methods  of  locomotion  and  intercourse,  in  the 
hands  of  a  few  speculating  and  daring  men  than  even  exists 
at  present,  and  cities  of  great  magnitude,  if  not  states,  may 
thus  be  made  and  unmade.  The  tariff  these  impose  may 
operate  like  a  protective  tariff  upon  some  communities,  like  a 
blighting  one  upon  others.  It  is  a  grave  question  whether 
the  congressional  measure  has  been  builded  upon  a  careful 
study  of  the  present  and  prospective  factors  involved,  of 
which  physical  elements  constitute  a  large  part. 

Among  roads,  rivers  and  other  channels  of  intercourse  by 
water  are  to  be  embraced.  The  influence  of  rivers  and  water 
has  been  partially  treated  under  another  head.  Here  we 
may  consider  the  use  social  aggregates  make  of  them.  Thus, 
they  become  highways  of  intercourse  whereby  different  sec- 
tions are  brought  together  politically,  as  occurred  with  the 
French  settlements  in  Louisiana,  Illinois  and  Canada,  by 
means  of  the  Lakes,  the  rivers  of  Illinois,  Indiana  and  Ohio, 
and  the  Mississippi ;  they  afford  the  easiest  means  of  com- 
munication among  a  people  who  have  not  yet  felt  the  need  of 
cutting  roads  through  the  wilderness;  they  have  formed 
barriers  of  protection  to  people ;  they  have  afforded  food  to 
the  inhabitants  of  the  earth.  And  in  our  modern  day  the 
poverty-stricken  can  find  upon  bodies  of  water  that  are  public 
a  right  to  fish  and  thus  to  maintain  life  without  infringing  on 
other's  rights.  The  use  of  rivers  and  other  bodies  of  water 
for  intercourse  is  recognized  in  legal  systems,  in  the  codes 
of  law  regulating  navigation  on  internal  waters,  upon  the 
ocean  and  inland  seas.  The  intercourse  between  social 
aggregates  is  what  led  to  such  systems,  developing  with 
the  size  and  needs  of  such  aggregates.  They  origin- 
ally were  based  on   what  resulted  spontaneously  from  the 


Physical  and  Social  Factors  of  Law.  51 

acts  and  methods  and  medium  of  navigation.  But  reforms 
and  additions  have  been  made  which  are  contained  in 
the  notions  which  experience  has  shown  to  be  beneficial ; 
which  therefore  owe  their  origin  to  more  or  less  thought. 
The  mills  of  earlier  and  later  days,  and  the  legislation  thus 
engendered,  from  the  early  Hof  or  Dorf  to  the  present  New 
England  Town,  depend  upon  river  and  streams.  Canals  and 
roads  were  created  by  social  aggregates  for  needs  that  were 
felt,  and  were  the  basis  of  much  controversy  at  certain 
stages  in  the  history  of  government.  The  Suez  Canal  and 
the  canals  of  Asia,  Egypt,  Europe  and  the  United  States 
filled  positive  needs,  and  were  and  are  the  subject  of  legisla- 
tion and  rights  which  courts  and  nations  enforce. 

The  early  mills,  agriculture  and  herding  of  flocks  implied 
social  aggregation.  The  earliest  form  of  agriculture  in  the 
shape  of  any  sharp-pointed  stick  for  digging  roots  resulted 
only  after  some  form  of  aggregation  made  it  needful,  and  the 
onerous  character  of  labor  required  to  develop  it  made  any 
advance  in  it  depend  upon  the  existence  of  a  class  which  was 
in  more  or  less  subjection  to  the  others  of  a  given  group. 
The  herding  of  flocks  is  hardly  practiced  as  early  as  the 
practice  of  digging  for  roots,  but  it  is  possible  for  it  to  have 
existed  among  many  aggregates  as  to  whom  agriculture  was 
limited  or  perhaps  non-existent.  Both  herding  and  hus- 
bandry are  emanations  from  the  pursuit  after  sustenance. 
So  they  are  both  the  outcome  of  favorable  physical  sur- 
roundings, and  they  have  proven  prerequisites  in  the  forma- 
tion of  such  aggregates  as  are  required  in  the  formation  of 
states.  They  are  the  bases  of  regulation  and  regimen  far 
back  in  the  history  of  mankind.1  And  this  regulation  and 
regimen  keep  pace  with  the  changes  and  progress  or  retro- 
gression of  the  mass.  The  earliest  forms  of  pastoral  and 
agricultural  communities  seem  to  show  a  community  holding 

1  Tylor,  Anthropology,  p.  214  seq.,  p.  418  seq.;  Spencer,  Principles  of 
Sociology,  Vol.  II.,  §538  seq.  See  also  Seebohm,  English  Village  Com- 
munity, p.  437.     See  Chap.  III.,  Sec.  I.,  post. 


52       An  Introduction  to  the  Study  of  tlie  Constitution. 

land  in  common  without  individual  ownership,  amongst 
whom,  as  judged  by  later  practices,  the  regulation  thereof 
was  the  result  of  practice  and  experience.1 

The  development  of  social  aggregation  implies,  therefore, 
beside  roads,  pastoral  life  and  agriculture.  We  know  that 
without  these  property  in  land  would  not  have  been  possible, 
neither  could  the  early  communal  political  organization  have 
come  into  existence.  Without  these  the  possibility  of  any 
kind  of  cooperation  needful  to  city  life  would  have  been  pre- 
vented, and  municipal  life  would  never  have  found  a  being. 
It  would  then  have  been  impracticable  for  a  civilized  aggre- 
gate, such  as  a  State,  to  find  a  basis  for  existence.  Our 
present  laws  contain,  as  historical  results,  a  vast  number  of 
regulations  which  bear  on  land  ownership,  that  had  a  begin- 
ning in  and  for  many  centuries  depended  upon  a  pastoral 
life  and  agriculture ;  and  modern  codes  contain  numbers  of 
regulations  showing  a  dependence  of  the  social  aggregates 
upon  this  use  of  land.  I  shall  treat  of  this  subject  more 
fully  hereafter.2 

The  use  of  weapons,  the  practice  of  war,  is  another  inci- 
dent of  social  aggregation.3  It  was  certainly  a  very  early  phe- 
nomenon. Forcible  resistance  or  attack  are  the  phenomena 
of  animal  life,  when  bent  on  securing  subsistence  or  satisfying 
passionate  impulses.  And  these  aspects  of  acquisition  or  de- 
fense come  up  through  all  stages  of  human  existence.  They 
develop  into  self-help  and  the  combined  defensive  energies  of 
the  family  group.  Roving  families  compelled  to  seek  for  food, 
subjected  to  severe  vicissitudes,  as  already  hinted  at,  would 

'See  Hanssen,  Agrarhistoriscbe  Abhandlungen,  Vol.  II.,  p.  84  seg.; 
Maurer,  Markenverfassung,  Appendix  ;  same,  Dorfverfassung,  Appendix  ; 
Seebohm,  Eng.  Village  Community ;  Laveleye,  Primitive  Property ; 
Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Cbap.  XV.;  Maine, 
Village  Communities.     See  Chap.  III.,  Sec.  I.,  post. 

2  Cf.  Chap.  III.,  Sec.  I.,  post. 

3"In  rude  societies  all  adult  males  are  warriors;  and,  consequently, 
the  army  is  the  mobilized  community,  and  the  community  is  the  army  at 
rest." — Spencer,  Principles  of  Sociology,  Vol.  II.,  #515. 


Physical  and  Social  Factors  of  Law.  53 

be  more  inclined  to  attack,  and  by  natural  increment  of  expe- 
rience develop  a  militant  state  or  condition.  Neighboring 
tribes  subjected  to  similar  conditions,  when  coming  into  colli- 
sion, would  engage  in  strifes.  The  weakly,  the  more  peaceable, 
would  need  protection.  They  would  ultimately  be  merged 
in  other  more  warlike  groups,  becoming  their  slaves,  or,  where 
possessed  of  superior  traits,  their  equals  or  superiors.  The 
discipline  thus  engendered,  enlarging  with  the  group  and 
with  the  needs  and  successes  and  defeats  it  suffered,  would 
become  amplified  in  details  and  severed  in  form,  presenting 
increasingly  with  its  vicissitudes  a  stricter  subordination,  or 
it  would  succumb  to  disintegration  resulting  from  want  of 
subsistence  or  from  defeat  in  wars.  The  character  of  warfare 
typifies  the  character  of  the  mass  engaged  in  it.  Among 
the  lowest  races  there  is  no  organization.  All  the  men  go  out, 
in  a  desultory  sort  of  way,  and  the  wars  are  not  very  bloody ; 
the  women  sometimes  assist.  The  picture  which  Champlain 
drew  of  a  battle  between  his  Indian  allies  and  the  Mohawks 
shows  how  very  primitive  was  their  mode  of  warfare.1  It  pre- 
sents two  swarms  of  men  with  bows  and  arrows,  who  ap- 
proached close  to  each  other  and  delivered  their  arrows.  Cham- 
plain  and  two  French  arquebusiers  in  a  few  minutes  defeated 
the  Mohawks  with  a  few  well  directed  shots.  Among  more 
developed  tribes  warfare  is  much  more  serious,  difficult  and 
imposing.  Many  of  the  tribes  of  Asia  and  Africa  have  shown 
far  superior  skill  in  the  military  art  to  these  lowest  races, 
with  each  advance  presenting  a  larger  or  more  compact  aggre- 
gation, better  arranged  and  disciplined  and  governed.  And 
the  history  of  mankind  has  been  in  a  large  measure  the 
history  of  the  military  art.'-     That  it  was  which  conspired  to 

1  Narrative  and  Critical  History  of  the  United  States,  Vol.  IV.,  p.  120. 
Cf.  last  two  chapters  of  the  present  work. 

2  Consult  Spencer,  Principles  of  Sociology,  Vol.  I.,  §259,  Vol.  II.,  Part 
V.,  Chap.  XII.  ;  Tylor,  Anthropology,  p.  221  seq.;  Hallam,  Middle  Ages, 
Vol.  I.,  p.  255  seq.;  Roemer,  Origins  of  the  English  People,  etc.,  p.  144  seq.; 
Bancroft,  History  of  the  United  States,  Vol.  II.,  Chap.  XXXVII.;  Green, 
Making  of  England,  p.  164  seq.  ;  same,  Conquest  sf  England,  pp.  66,  67, 


54       An  Introduction  to  the  Study  of  the  Constitution. 

consolidate  tribal  and  municipal  organizations,  thus  creating 
larger  territorial  social  aggregates.  It  created  a  head  and  a  kind 
of  political  existence  among  loose  formations.  We  know  that 
without  it  no  Roman  Empire,  nor  Merovingian  or  Carolin- 
gian  dynasty  would  have  been  possible,  and  that  Europe  to- 
day would  be  without  any  such  social  aggregations  as  it  has. 
The  importance  of  the  military  art  can  be  seen  by  reference  to 
what  it  has  lost  in  social  evolution.  Setting  out  with  that 
period  in  which  the  army  is  coextensive  with  the  adult  and 
male  population,  and  a  body-politic  has  not  yet  formed,  we 
observe  how  it  eventually  becomes  specialized.  "There  is 
the  restriction  in  relative  mass  which,  first  seen  in  the  growth 
of  a  slave  population  engaged  in  work  instead  of  war, 
becomes  more  decided  as  a  settled  agricultural  life  occupies 
freemen  and  increases  the  obstacles  to  military  service. 
There  is,  again,  the  restriction  caused  by  that  growing  cost- 
liness of  the  individual  soldier  accompanying  the  develop- 
ment of  arms,  accoutrements  and  ancillary  appliances  of  war- 
fare ;  and  there  is  yet  the  additional  restriction  caused  by  the 
intenser  strain  which  military  action  puts  on  the  resources  of 
a  nation,  in  proportion  as  it  is  carried  on  at  a  greater  distance. 
With  separation  of  the  fighting  body  from  the  body-politic  at 
large,  there  very  generally  goes  acquirement  of  a  separate 
head.  Active  militancy  ever  tends  to  maintain  union  of 
civil  rule  with  military  rule,  and  often  causes  reunion  of 
them  where  they  have  become  separate;  but  with  the 
primary  differentiation  of  civil  from  military  structures  is  com- 
monly associated  a  tendency  to  the  rise  of  distinct  controlling 
centers  for  them."1  The  factors  that  imply  a  militant  con- 
dition of  the  tribe  will  likewise  account  for  that  disposition 
which  regards  robbery  of  strangers  as  legitimate ;  human  life, 
on  its  own  account,  of  comparatively  little  value ;  cruelty  and 
slavery  as  natural ;  and  agriculture  and  the  herding  of  flocks 

414,  415,  and  see  the  whole  of  these  two  works,  and  generally  Spencer's 
Descriptive  Sociology.     For  development  of  Roman  military  discipline, 
see  Marquardt,  Rom.  Staatsverwaltung,  Vol.  II.,  Part  III. 
1  Principles  of  Sociology,  Vol.  II.,  §521. 


Physical  and  Social  Factors  of  Law.  55 

and  the  practice  of  peaceful  professions  as  menial.  And  these 
conditions,  as  we  know  from  European  history,  will  not  die  out 
until  the  body-politic  is  formed  upon  those  broader  bases 
implied  in  recent  and  most  modern  state  formations.  The 
savage  disposition  in  mankind,  its  animal  impulses  and  pas- 
sions, promoted  by  association  among  human  beings,  have 
succumbed  slowly  to  the  moral  suasion  and  influence  of  a 
developing  humaneness ;  the  one  was  more  a  physical,  the 
latter  a  more  mental  impulse.  And  the  feelings  of  anger,  fury, 
malevolence,  by  which  individuals  are  influenced,  are  surviv- 
ing remnants  of  those  same  animal  impulses.1  That  the  law 
has  dealt  with  this  impulse  needs  no  telling.  Malice  makes 
crime  more  atrocious,  civil  offenses  more  grave.  But  the 
law  has  dealt  only  with  acts ;  the  motive  is  punishable  only 
when  manifested  in  acts,  and  the  acts  indicate  the  motive.2 

The  products  of  military  life  have  been,  speaking  of  phys- 
ical conditions,  aggregations  of  individuals  in  increasing 
cohesive  form ;  construction  and  maintenance  of  roads ; 
creation  and  maintenance  of  slavery  or  serfdom ;  the  main- 
tenance of  status  as  opposed  to  contract;  demand  for  fort- 
resses; demand  for  arms,  ammunition,  ordnance,  etc.  And 
as  these  came  into  existence  there  were  born  regulations, 
rules,  customs,  laws  (call  them  what  you  will)  relating  to 
the  needs  of  a  community  engaged  in  war,  increasing  as  the 
community  enlarged.  From  rules  inhibitory  of  desertion  or 
cowardice,  among  early  tribes,  and  modes  of  treating  captives, 
down  to  the  elaborate  rules  embraced  in  modern  military 
codes  and  treaties  and  hospital  service,  one  can  trace  up  the 
evolution  of  rules  of  military  conduct  growing  up  with  the 
practice  of  war,  while  social  aggregates  broke  up  and  reformed 
or  merged  in  other  aggregates  or  ceased  to  exist.     And  one 

1  Compare  Spencer,  Data  of  Ethics ;  Tylor,  Anthropology,  p.  405  seq. ; 
Bain,  Emotions  and  the  Will,  p.  179  seq.;  Leslie  Stephen,  Science  of 
Ethics,  p.  236  ;  Martineau,  Ethical  Theory,  p.  172  seq.;  Mind,  Vol.  VIII., 
pp.61,  415,562. 

3  Bishop,  Criminal  Law,  §§204  seq. ;  Stephen,  History  of  Criminal  Law, 
Vol.  II.,  p.  110  seq. ;  see  Woolsey,  Political  Science,  Part  II.,  Chap.  VIII. 
For  earlier  aspects  of  criminal  law,  see  Post,  Bausteine,  etc.,  Vol.  I. 


56       An  Introduction  to  the  Study  of  the  Constitution. 

can  trace  to  wars  the  continuance  of  barbarousness  down  to 
our  own  day  in  many  forms,  and  the  sanguinary  character 
of  codes  up  to  a  very  recent  day  in  some  countries  and  the 
continuance  of  such  codes  in  other  countries.  The  practice 
of  war,  like  the  practice  of  other  things,  begets  a  taste  for  it 
and  a  corresponding  disposition  ;  and  thus  military  art  may 
tend,  when  aided  by  the  existence  of  large,  well-formed  and 
compact  social  aggregates,  to  become  a  factor  promotive  of 
anti-social  anti-humane  rules.  But  no  one  can  legislate  for 
armies  and  for  their  proper  management  who  attempts  to  do 
so  by  reference  to  theory  only.  Many  physical  conditions 
must  be  studied  and  borne  in  mind  before  a*  successful  cam- 
paign can  be  assumed.  Von  Moltke's  knowledge  of  French 
territory,  French  railroad  capacity  and  other  resources  formed 
a  base  for  legislation  that  facilitated  a  most  extraordinary 
campaign.  The  knowledge  of  Russian  power  has  had  an 
effect  upon  European  legislation ;  the  contiguity  of  Russian 
dominion  upon  English  legislation. 

Barter  and  trade  are  other  incidents  of  social  aggregation. 
It  would  be  difficult  to  imagine  any  extended  co-operative 
life  without  these  factors.  They  have  followed  close  upon 
early  forms  of  aggregation  and  have  kept  pace  with  develop- 
ment. The  practice  appears  in  the  "  swapping  "  among  chil- 
dren, and  in  a  similar  act  among  early  beings.  Many  savage 
tribes  show  that  they  understood  the  practice.  The  Indians  of 
North  America  in  the  days  of  the  first  settlers  used  "wam- 
pum" as  a  medium  of  exchange;  the  Australian  tribes 
carry  stone,  valuable  for  making  hatchets,  hundreds  of  miles 
and  accept  in  return  therefor  products  they  prize.  The  Iliad 
speaks  of  barter.1  The  Esthonian  word  raha,  money,  in  the 
related  language  of  the  Laplanders  means  fur.     In  Russia 

1  VII.  472  ff.  Oxen  formed  the  basis  of  barter.  Ibid.  II.  449,  VI. 
236,  XXI.  49,  XXIII.  703  ff.;  Odyss.  I.  431;  Jevons,  Money  and  the 
Medium  of  Exchange  ;  Schrader,  Handelsgeschichte  u.  Warenkunde, 
Chap.  IV.  The  evidence  points  to  ornaments  as  the  first  forms  of 
money.  Schrader,  loc.  cit.  The  earliest  forms  of  barter  were  probably 
gifts  given  in  exchange  for  gifts.     Ibid.  9,  10. 


Physical  and  Social  Factors  of  Law.  57 

hung,  money,  means  marten.  The  Danes  used  cattle  and, 
after  they  had  progressed  in  agriculture,  grain  in  barter. 
Cattle  were  used  among  the  early  Germans,  Irish,  Scotch 
and  Anglo-Saxons.  The  Kirghises  use  horses  and  sheep, 
wolf-skins  and  lamb-skins.  Among  the  Persian  nomads 
sheep  or,  when  held  in  subjection  in  the  cities,  corn,  straw 
and  wool  are  used  in  exchange.  Cattle  are  used  in  barter 
by  the  Tartars  and  the  Tscherkessens.1  In  Rome  pecunia, 
which  originally  meant  property,  riches,  wealth,  wealth  in 
cattle,  later  came  to  signify  money;  it  was  derived  from 
pecus,  which  meant  cattle  or,  collectively,  a  herd.  Pecus  is 
said  to  be  related  to  the  Gothic  faihu,  Anglo-Saxon  fed, 
German  vieh,  English  fee,  all  derivations  of  the  same  root 
pagu,  and  all  mean  cattle.  The  early  swapping  we  know 
has  evolved  into  the  vast  and  multitudinous  transactions  of 
commerce  that  now  occupy  the  attention  of  a  vast  number 
of  the  inhabitants  of  the  world.  The  methods  whereby  this 
has  been  accomplished  embrace  means  of  transportation, 
regulated  between  town  and  town  by  tolls  or  duties — tolls 
and  duties  that  were  the  forerunners  of  the  tariff  policies  of 
nations.  So  these  methods  embrace  places  of  trade,  such  as 
markets  and  fairs,  from  early  days  to  our  own  day ;  and  now 
also  market-places  and  expositions,  all  of  which  are  the 
occasions  of  no  little  legislation  and  a  great  many  decisions.2 
Banks,  coinage,  commercial  paper  and  securities,  bailments, 
telegraphy,  intercourse  between  nations,  states,  cities  and 
other  localities,  manufactories,  shipping,  invention,  even 
science,  more  or  less  directly  represent  methods  whereby 
commerce  has  become  so  large  an  element  of  human  activity. 
And  all  of  these  constantly  imply  the  use  and  need  of  phys- 
ical objects,  also  aggregations  and  aggregate  unity  and  action 
depending  as  much,  if  not  more,  upon  spontaneous  growth  as 
upon  self-conscious  origination. 

'Compare  Roescher's  Political  Economy,  Book  II.,  Chap.  III.;  Tylor, 
Anthropology,  p.  281  seg.;  Hallam,  Middle  Ages,  Vol.  II.,  p.  527. 

2  A  splendid  inquiry  into  the  early  history  of  trade  is  to  be  found  in 
Schrader,  Handelsgeschichte  und  Warenkunde. 


58       An  Introduction  to  the  Study  of  the  Constitution. 

Roads,  bridges,  fortifications  tend  to  add  new  aggregates 
to  those  already  existing.  They  contribute  to  make  agricul- 
ture, the  military  art,  and  barter  and  trade  more  extensive, 
effective  and  influential.  And  these  severally  act  and  react 
upon  each  other  when  utilized  by  the  growing  aggregates. 
They  do  nothing  by  themselves,  yet  they  shape  the  molding 
and  evolving  forces  of  social  aggregates,  and  they  inci- 
dentally tend  to  make  and  unmake  customs  and  laws. 

The  influence  of  social  aggregation  upon  jurisprudence  now 
meets  with  general  recognition.1  It  has  been  affirmed  that 
the  legal  unit  was  the  family  f  and  from  that  point  the  his- 
tory or  development  or  growth  of  law  has  been  traced  up. 
The  customs  expand  with  aggregation  into  larger  social 
forms,  and  (as  social  aggregations  become  more  complex 
and  numerous,)  assume  more  and  more  those  forms  which 
approach  nearest  to  our  present  laws.  When  city  and 
national  life  come  into  existence  they  are  based  on  social 
aggregations  previously  existing,  and  upon  that  mass  of 
customs  and  forms  which  represent  the  sum  of  acting  and 

'Ihering,  Zweck  ira  Recht,  Vol.  II.,  142;  Wharton,  American  Law, 
Chaps.  I.  and  II.;  Stephen,  Science  of  Ethics,  Chap.  IV.;  Spencer, 
Principles  of  Sociology,  Vol.  II.,  Political  Institutions,  esp.  Chap.  XIV.; 
same,  Data  of  Ethics,  Chap.  VIII.;  Fiske,  Cosmic  Philosophy,  Vol.  II., 
240  seq.;  Amos,  Science  of  Law,  Chap.  IV.;  an  article  by  Prof.  S.  W. 
Dyde,  in  Mind,  Vol.  XIII. ,  549  seq.;  Lecky,  History  of  European  Morals, 
Vol.  I.,  130  seq.,  and  other  portions  of  the  same  work;  Courtney,  Construc- 
tive Ethics,  26  seq.;  Frederick  Pollock,  Essays  in  Jurisprudence  and 
Ethics,  Chaps.  VIII.  and  XI. ;  Montesquieu,  Spirit  of  Laws,  Book  L,  Chap. 
III.;  Markby,  Elements  of  Law,  Chap.  I.;  Holland,  Elements  of  Jurispru- 
dence, Chap.  IV.;  Clark,  Practical  Jurisprudence,  149  seq.;  Savigny, 
Heutigen  R.  R.,  Chap.  II.;  Holtzendorf,  Encyclopaedia  der  Rechtswis- 
senschaft  (Systematischer  Theil),  passim,  esp.  see  first  article  on  the 
Philosophical  History  of  Jurisprudence  ;  Fowler,  Progressive  Morality, 
passim. 

2 Maine,  Ancient  Law,  128  seq.;  Miller,  Philosophy  of  Law,  47  seq.; 
Hearn,  Aryan  Household,  passim;  Essays  in  Anglo-Saxon  Law,  122; 
but  see  Chap.  III.,  Sec.  II.,  and  Chap.  IV.,  post.  The  earliest  form  was 
not  the  family  as  much  as  it  was  a  group  of  so-called  kinsmen,  clustered 
around  a  female  or  females.  For  an  illustration  see  W.  Robertson  Smith, 
Kinship  in  Arabia. 


Physical  and  Social  Factors  of  Law.  59 

doing  of  these  aggregates.  Some  customs  or  laws  are  pecu- 
liar to  aggregates — thus  those  customs  or  laws  which  control 
in  the  deliberations  and  movements  of  such  aggregates  with 
reference  to  each  other.  The  leagues  of  early  Grecian  com- 
monwealths, of  the  free-cities  of  the  Rhine,  the  Hanseatic 
League,  the  treaties  between  nations,  and  a  growing  mass  of 
rules  governing  the  relations  between  members  of  united  or 
confederated  states,  all  imply  legal  relations  and  indefinite 
legal  problems.  In  our  modern  day  the  relations  between 
the  nation  and  the  state,  between  the  nation  and  the  town- 
ships, counties  and  cities,  and  between  the  state  and  its  sub- 
divisions, have  given  rise  and  will  continue  to  give  rise  to 
important  legal  positions  and  problems.1  The  commerce 
clause  of  the  United  States  Constitution,  which  originally 
contemplated  the  power  to  impose  a  tariff  for  protective  pur- 
poses,2 seems  in  this  to  now  militate  against  State  integrity 
and  to  require  a  different  interpretation  on  this  account.3  In 
any  event,  up  to  quite  recently  the  superior  prevalence  of 
State  loyalty  completely  dropped  from  the  public  conscious- 
ness the  original  moving  causes  of  that  clause.  The  sense 
of  State  and  county  integrity  has  been  creating  a  sentiment 
adverse  to  the  exercise  of  any  control  over  cities  and  coun- 
ties by  Federal  tribunals.  Corporate  life  has  found  a  great 
expansion  in  the  shape  of  municipal  and  especially  private 
corporations;  and  the  continual  increase  of  these,  and  the 
vast  wealth  and  influence  they  are  securing,  is  begetting  a 
sentiment  adverse  to  them.  Therefore  legislation  concerning 
railroad  and  insurance  corporations  is  becoming  stricter  and 
more  extended.  Corporate  life,  of  the  kind  just  mentioned, 
has  introduced  that  lack  of  sympathy  between  employer  and 
employed  which  is  increasing  the  discontent  of  the  employe, 

1A  reference  to  Cooley,  Constitutional  Limitation?,  will  confirm  this 
statement. 

3Tariff  Hist,  of  the  U.  S.,  by  David  H.  Mason,  Part  I.;  Crit.  and  Nar. 
Hist.  U.  S.,  Vol.  VII.,  Chap.  IV.    See  also  the  last  chapter  of  this  work. 

3 Reports  Am.  Bar  Ass'n,  Vol.  XI.,  247  seq.,  a  paper  by  J.  Randolph 
Tucker. 


60       An  Introduction  to  the  Study  of  the  Constitution. 

and  is  manifesting  its  results  in  strikes,  in  socialism  and 
anarchy.  So,  too,  furnishing  as  it  does  tremendous  leverage  to 
men  of  exceptional  financial  skill,  this  corporate  life  is  putting 
political  entities  at  the  mercy  of  a  few,  and  is  becoming  the 
means  of  vast  accumulations  in  the  hands  of  the  few  at  the 
expense  of  the  many.  It  is  also  loosening  the  cords  of  family 
life  in  favor  of  luxury,  over-indulgence  and  skepticism.  The 
law  deals  with  all  of  these  circumstances,  or  ought  to.  How 
can  it  do  so  properly,  save  by  a  recourse  to  the  fundamental 
causes  of  evil ;  save  by  a  study  of  those  elements  which  have 
rendered  possible  these  growths  ?  The  aggregation  of  indi- 
viduals is  looked  at,  in  certain  particulars,  with  more  or  less 
concern  by  governments,  and  the  laws  reflect  this  sentiment. 
In  many  European  countries  it  is  a  crime,  more  or  less  severely 
punishable,  for  men  to  assemble  together  at  certain  times  and 
places,  no  matter  what  the  occasion.  Socialistic  and  com- 
munistic movements  are  condemned  and  punished  with 
severity.  And  in  our  own  law  certain  combinations,  whether 
called  trusts,  pools,  or  by  other  names,  are  treated  as  criminal 
conspiracies.1 

Not  only  in  the  form  of  States,  cities,  towns  and  the  like 
is  law  moulded  and  fashioned  by  aggregates ;  not  only  by 
the  family  or  tribal  groups  is  it  affected;  it  is  likewise 
affected  by  those  aggregates  which  are  formed  for  purposes 
of  trade  in  different  centers  or  places ;  by  those  aggregates 
which  contemplate  the  regulation  of  benevolent  and  penal 
establishments,  and  by  those  aggregates  which  embrace  the 
"  humanity  "  of  a  given  period.  All  sorts  of  such  forms  are 
continually  arising  and  dying  out,  leaving  their  effect  upon 
the  laws  that  are  extant.2 

'See  Wright,  Criminal  Conspiracies,  with  Corssen's  addition  thereto. 
Two  or  more  persons  are  essential  to  constitute  a  conspiracy,  ibid.  127. 
But  a  man  and  wife  are  not  capable  of  so  conspiring,  ibid.  Conspiracy 
has  been  said  to  be  "a  breathing  together."     28  Fed.  Rep.  808. 

2  See  Bacon,  Benefit  Societies  and  Life  Insurance,  Chap.  II.  Beside 
corporate  associations  may  be  mentioned  unincorporated  associations, 
partnerships  and  clubs.     See  Ibid.,  Chaps.  I.  and  II. 


Physical  and  Social  Factors  of  Law.  61 

The  individual  himself  changes  under  the  influence  of 
social  aggregation.  In  some  respects  his  personal  freedom 
becomes  more  restrained,  either  as  slave  or  serf  or  dependent; 
in  some  particulars,  that  is  in  the  opportunities  and  capacity 
for  accumulation  and  the  superior  means  of  preservation  thus 
afforded,  he  may  secure  a  less  precarious  means  of  existence 
and  obtain  a  larger  personal  enjoyment  than  he  previously 
had.  And  the  law  reflects,  in  multiform  particulars,  these 
effects.  His  mental  condition,  which  is  least  dependent  upon 
physical  factors,  nevertheless  exhibits  the  effect  of  such  devel- 
opment, as  social  aggregation  superinduces,  in  a  developed 
brain,  in  inherited  feelings,  in  social  aptitudes.  And  the 
dependence  these  have  upon  physical  elements  is  easily  seen 
when  lesions  or  physical  taints  produce  abnormal  conduct  in 
this  or  that  particular.  The  brain  is  now  regarded  as  the 
seat  of  the  mind,  and  its  physical  characters  are  too  obvious 
for  discussion,1  and  the  law  which  recognizes  the  causes  of 
insanity,  or  mental  disease,  in  a  diseased  brain,  looks  with 
suspicion  at  the  will  or  contract  of  the  undeveloped  mind  or 
brain  of  the  infant,  of  the  weakened  mind  or  brain  of  the 
inebriate  or  idiot  or  those  afflicted  with  senility,  and  it  makes 
allowances  for  the  more  emotional  and  susceptible  natures 
of  women,  especially  wives,  and  contains  provisions  for  the 
protection  of  all  of  these  ;  these  provisions  are  rules  which 
have  come  up  with  the  growth  and  development  of  society, 
thus  illustrating  the  recognition  of  social  and  physical  ele- 
ments as  controlling  factors. 

The  position  of  the  individual  in  the  early  village  com- 
munity, typified  in  the  Russian  mir  of  to-day,  is  radically 
different  from  that  occupied  by  him  in  the  United  States. 
His  rights  and  duties  were  less  comprehensive  and  detailed. 

Compare  Bain,  The  Emotions  and  the  Will ;  same,  The  Senses  and  the 
Intellect;  Spencer,  Principles  of  Psychology;  Lewes,  Problems  of  Life 
and  Mind  ;  Maudsley,  Body  and  Will ;  same,  Physiology  and  Pathology 
of  the  Mind ;  Sully,  Sensation  and  Intuition  ;  same,  Illusions ;  Wundt, 
Grundziige  der  physiologischen  Psychologie  ;  Ribot,  Diseases  of  Memory ; 
same,  Diseases  of  Will ;  Luys,  The  Brain  and  its  Functions. 


62       An  Introduction  to  the  Study  of  the  Constitution. 

His  place  in  the  body  of  which  he  was  a  unit  was  of  more 
consequence  than  now,  but  his  freedom  of  action  was  more 
restricted.  The  existence  of  frequent  wars  and  a  militant 
organization  begot  and  maintained  in  ancient  Rome  a  feeling 
of  patriotism  and  reverence  for  power  that  rendered  pos- 
sible the  deification  of  emperors  and  the  enforcement  of 
that  apotheosis  by  laws.  The  industrial  development  of  later 
ages  has  produced  a  regard  for  promises  and  oaths  that  is 
evidenced  in  the  laws  against  perjury  and  in  favor  of  the 
enforcement  of  contracts  to  an  extent  unknown  in  ancient 
times.  And  these  influences  have  colored  the  lives  of  indi- 
viduals as  they  have  given  character  to  the  age  and  the  state. 
The  drift  of  modern  communities  seems  to  be  towards 
democracy  and  a  kind  of  socialism.1  In  the  heart  of  Europe, 
under  the  Berlin  Treaty,  a  great  extension  was  given  by 
monarchical  nations  to  democratic  tendencies,  and  was  forced 
upon  all  of  the  parties  thereto  by  circumstances  based  upon 
mutual  distrust.  So  in  England  and  the  United  States, 
laws  aiming  to  provide  for  and  protect  the  masses,  in  utter 
opposition  to  the  doctrine  of  laisser /aire,  have  been  all  along 
on  the  increase.2  Poor  laws,  laws  relating  to  land-ownership, 
laws  providing  for  state  ownership  of  railroads,  telegraphs, 
etc.,  mechanics  lien  laws,  laborers  lien  laws,  are  evidences  of 
the  moderate  form  of  socialism.  But  other  graver  aspects  of 
a  similar  tendency  may  be  found  in  the  disposition  to  make 
laws  interpretable  and  applicable  as  in  the  judgment  of  any 
jury  may  seem  most  appropriate.3  That  democracy  pro- 
duces good  results  and  political  self-control  has  been  exem- 
plified on  more  than  one  occasion  in  the  United  States, 
especially  after  heated  presidential  elections.  And  that  an 
extravagant  application  of  democratic  theories  may  tend  to 
annihilation  is  well  illustrated  by  anarchism.     Both  result 

1  Compare  Hosmer,  The  People  and  Politics,  and  see  Political  Science  ■ 
Quarterly,  Vol.  III.,  549  seq.;  Graham,  Old  and  New  Socialism. 

2  Herbert  Spencer,  The  Man  versus  the  State. 

3See  the  instructions  given  by  the  trial  judge  in  the  anarchist  trials  of 
Spiess  and  his  confederates,  Northeast  Reporter,  Vol.  XII.,  865. 


0 


Physical  and  Social  Factors  of  Law.  63 

from  combinations,  and  both  react  in  forming  the  legal  status 
and  feelings  of  individuals.  In  the  United  States  those  who 
have  become  identified  with  its  democratic  institutions  dis- 
play largely  a  feeling  of  deference  and  obedience  for  law  and 
courts;  while  those  who  have  become  transplanted  there, 
and  do  not  care  to  become  identified  with  its  institutions 
and  body-politic,  aim  to  annihilate  the  governments  and  laws 
there  prevailing  by  means  of  assassination,  fire  and  dynamite, 
in  spite  of  the  fact  that  they  invoke  with  vehemence,  even 
frenzy,  the  protection  of  the  government  and  laws  when 
called  to  account  for  their  atrocious  doctrines.  The  effect  of 
aggregation  upon  the  individual  was  illustrated  by  the  history 
of  slavery  in  the  United  States  after  the  Federal  Constitution 
was  adopted.  Introduced  into  the  country  by  traders,  it 
flourished  both  in  the  North  and  South,  until  climate  and  soil 
in  the  North  demonstrated  the  need  of  that  thrift  and  toil 
which  are  inimical  to  serfdom;  these  begot  economy,  great 
energy,  careful  regimen  and  thought,  and  an  unfavorable  field 
for  slave  and  other  unprofitable  labor.  In  the  South  manu- 
facturing was  not  followed ;  there  the  cultivation  of  tobacco, 
corn  and  cotton,  and  the  great  heat  which  rendered  exertion 
painful,  produced  a  favorable  region  for  the  employment  of 
slave  labor.  The  needs  and  demands  of  the  latter  and  the  lack 
of  such  needs  on  the  part  of  the  former  produced  that  antag- 
onism which  culminated  in  abolitionism  and  secession  and  war. 
The  resulting  emancipation  has  produced  new  social  problems 
with  which  political  parties,  legislators  and  courts  have  been, 
and  will  continue  to  be,  called  upon  to  deal.  The  emancipa- 
tion movement  was  the  prolific  cause  of  many  urgent  laws, 
and  its  results  will  be  still  further  seen  in  the  multiplication 
of  other  not  less  urgent  laws. 

Before  concluding  this  chapter  I  venture  to  mention  the 
productive  agency  which  animals  have  played  in  the  formation 
of  laws.  One  needs  but  to  be  reminded  of  humanitarian  laws 
for  the  protection  of  animals,  in  order  to  understand  that 

'See  Chap.  IV., post. 


64       An  Introduction  to  the  Study  of  the  Constitution. 

their  presence  has  given  rise  to  serious  controversy  in  the 
field  of  law.  Vivisection  is  thus  lamed  and  rendered 
impotent  of  results,  when  it  ought  not  to  be  improperly 
checked.  Laws  against  estrays,  vicious  animals,  and  for  the 
licensing  of  animals  result  from  their  presence  and  use  in 
societies.  That  they  are  capable  of  ownership  and  value 
needs  not  to  be  told. 

Note. — Mr.  A.  L.  Lyall,  whose  familiarity  with  Indian 
institutions  and  history  will  not  be  questioned,  says  :  "  No 
better  example  [than  India]  could  be  found  of  the  force  with 
which  needs  and  risks  of  a  primitive  age  can  bind  men 
together  by  spontaneous  combination,  for  the  purposes  of  social 
preservation  and  continuity."1 

Professor  Woolsey  affirms  :  "  There  is  no  highly  civilized 
society  which,  if  its  history  is  traced  back,  does  not  contain 
some  vestiges  of  a  type  of  polity,  which  may  fairly  be  sup- 
posed to  be  connected  with  and  to  have  grown  out  from  the 
first  institutions  of  mankind.  There  is  no  savage  or  uncivil- 
ized race  which  cannot  in  its  institutions  be  referred  back, 
on  the  supposition  of  degeneration  or  of  natural  departure,  to 
social  forms  that  grew  out  of  the  family  state  or  out  of  some- 
thing like  it."2 

Dr.  Hosmer,  who  has  written  a  remarkable  book  on  poli- 
tics, says  that  "communities  of  human  creatures — 'bodies 
politic' — are  organisms  that  have  an  existence  marked  by 
definite  stages  of  growth  and  decay;  and  the  changes  that 
take  place  in  that  existence  do  so  regularly  within  certain 
limits,  and  under  the  influence  of  external  physical  conditions, 
or  of  impulses  originating  in  the  vital  resources  of  these  bodies. 
They  have  their  physiological  history,  and  the  facts  of  this 
history  recur  with  certainty  in  the  same  circumstances. 
Politics — as  a  classification  of  these  facts — the  digestion  of 

'A.  L.  Lyall  on  Sir  Henry  S.  Maine,  Law  Quarterly  Review,  Vol.  IV., 
132. 
2 Theodore  D.  Woolsey,  Political  Science,  Vol.  I.,  §137  seq. 


Physical  and  Social  Factors  of  Law.  65 

the  facts  involved  in  the  relations  of  men  in  political  com- 
munities, and  in  the  relation  of  such  communities  to  one 
another — is  as  clearly  a  physical  science  as  natural  history — 
of  which,  indeed,  it  is  a  further  part,  for  it  is  a  habit  of  the 
animal  man  to  construct  states."1  He  has  written  a  profound 
treatise  which  tends  to  show  how  one  form  of  government 
has  flowed  from  the  other,  in  the  consecutive  growth  of  man- 
kind ;  becoming  revealed  in  spite  of  the  bloom  and  wreck  of 
many  nations. 

The  purely  physical  aspects  of  aggregates  in  the  produc- 
tion of  law  are  well  illustrated  by  Professor  Sheldon  Amos, 
in  his  works  on  the  science  of  law  and  the  science  of  politics.2 
In  one  place  he  says  :  "  The  object  for  which  the  rules  which 
constitute  a  nation's  law  are  made  is  the  determining  of  the 
mutual  relations  of  the  human  beings  who  form  the  com- 
munity." 

"  The  whole  community  may  be  regarded  as  composed  of 
an  active  crowd  of  multitudinous  atoms,  incessantly  crossing 
one  another's  path  and  interfering  with  one  another's  free- 
dom of  movement.  The  influence  of  family  life  and  of  the 
simpler  forms  of  agricultural  and  industrial  co-operation 
tend,  of  themselves,  at  the  very  birth  of  the  state,  to  create 
within  the  realm  of  this  confused  atomic  action  an  increasing 
number  of  fixed  groups  or  centers  of  independent  movement. 
About  the  same  time  another  series  of  events  is  taking  place, 
giving  rise  to  the  phenomena  of  law.  These  events  are  of  a 
different  description  in  different  communities.  Either  the 
groups  spontaneously  enlarge  themselves  and  the  village 
absorbs  the  family,  or  some  one  or  more  of  the  originally 
co-equal  groups  enlarge  in  numbers  or  increase  in  import- 
ance out  of  proportion  to  the  rest.  Or  the  whole  community 
becomes  subjugated  to  the  sway  or  influence  of  some  already 
organized  state.     What  is  of  importance,  however,  to  notice 

1  G.  W.  Hosmer,  The  People  and  Politics,  22,  23.     See  also  Miller, 
Philosophy  of  Law,  Lecture  IX. 

2  A  Systematic  View  of  the  Science  of  Jurisprudence  ;  Science  of  Law, 
and  Science  of  Politics. 


66       An  Introduction  to  the  Study  of  the  Constitution. 

is  that,  in  every  case,  the  final  result  is  the  adjustment  of  the 
limits  of  free  movement  of  the  various  groups  constituting 
the  community,  in  respect  of  their  capacity  for  disturbing 
each  other."1 

"Physical  relations  involve  and  generate  jural  relations, 
in  the  case  of  self-conscious  beings.  Person  and  property 
have  created  the  state  just  as  truly  as  the  state  has  created 
them.  Or  rather,  as  in  an  organic  body,  each  part  is  a  means 
and  at  the  same  time  an  end."  In  the  same  chapter  pro- 
gressive integration  in  the  formation  of  law  is  insisted  upon.2 

No  person  has  shown  more  conclusively  the  play  of  aggre- 
gation in  the  production  of  law  than  Mr.  Herbert  Spencer. 
One  cannot  single  out  portions  of  his  work  to  illustrate  this. 
The  Principles  of  Sociology  disclose  it  in  a  most  marked 
manner.  The  formation  of  groups,  their  compounding  and 
recompounding,  are  emphasized  as  accompanying  social  evo- 
lution, and  law  is  shown  to  be  one  of  the  products.  It  would 
appear  from  what  he  has  written  that  the  evolution  of  human 
beings  necessarily  involved  social  evolution  and  social  pro- 
ducts, and  that  law  was  a  spontaneous  outcome.3 

"  Wenn  wir  in  der  Betrachtung  des  Rechtsverhaltnisses 
von  alien  besonderen  Inhalt  desselben  abstrahiren,  so  bleibt 
uns  als  algemeines  Wesen  desselben  ubrig  das  auf  bestimmte 
Weise  geregelte  zusammenleben  mehrerer  Menschen.  Es 
liegt  nun  sehr  nahe,  bei  diesem  abstracten  Begriff  einer 
Mehrheit  iiberhaupt  stehen  zu  bleiben,  und  das  Recht  als 
eine  Erfindung  derselben  zu  denken,  ohne  welche  die  aussere 
Freiheit  keines  einzelnen  bestehen  konnte.  Allein  ein 
solches  zufalliges  Zusammentreifen  einer  unbestimmten 
Menge  ist  eine  willkuhrliche,  aller  Wahrheit  ermangelnde 
Vorstellung :  und  fande  sie  sich  wirklich  so  zusammen,  so 
wiirde  ihr  unfehlbar  die  Fahigkeit  der  Rechtserzeugung 
mangeln,  da  mit  dem  Bediirfniss  nicht  zugleich  die  Kraft  der 

1  Science  of  Law,  78,  79. 

2  Wm.  Galbraith  Miller,  Philosophy  of  Law,  230. 

Principles  of  Sociology,  Part  V.,  Chap.  XIV.  Of.  also  Data  of  Ethics, 
passim,  and  his  recent  work  on  Justice. 


Physical  and  Social  Factors  of  Law.  67 

Befriedigung  gegeben  ist.  In  der  That  aber  finden  wir 
liberal],  wo  Menschen  zusammen  leben,  und  so  weit  die 
Geschichte  davon  Kunde  giebt,  dass  sie  in  einer  geistigen 
Gemeinschaft  stehen,  die  sich  durch  den  Gebrauch  derselben 
Sprache  sowohl  Kund  giebt,  als  befestigt  und  ausbildet.  In 
diesem  Naturganzen  ist  der  Sitz  der  Rechtserzeugung,  denn 
in  dem  Gemeinsamen,  die  einzelnen  durchdringenden  Volks- 
geist  findet  sich  die  Kraft,  das  oben  anerkannte  Bediirfniss 
zu  befriedigen."1 

'Savigny,  Heutigen  rom.  Rechts.,  Band  I.,  §8.  See  Savigny's  and 
Spencer's  views  compared  in  Wharton,  Commentaries  on  American  Law, 
§106.  See  also  post,  Chaps.  III.,  IV.;  also  Holtzendorf,  Encyklopadie 
der  Rechtswissenschaft,  Systematischer  Theil,  602. 


CHAPTER  III. 

THE  EVIDENCES  OF  PHYSICAL  AND  SOCIAL  FACTORS 
IN  LAW. 

SECTION   I. — IN   THE   LAW   OF    PROPERTY. 

Though  procedure  may  have  been  largely  instrumental  in 
giving  early  expression  to  law  among  archaic  communities/ 
it  does  not  seem  to  have  been  its  first  producing  cause.  The 
most  primitive  form  of  procedure  known,  self-help,  which  is 
practiced  by  animals  far  down  in  the  scale  of  organization,2 
and  which  is  an  utterance  of  that  physical  impulse  which 
manifests  itself  in  the  defence  of  food,  mates,  offspring  and 
habitation — this  simplest,  earliest  form  of  procedure  implies 
possessions,  valued  possessions.  Whether  land  or  other 
objects  were  the  first  occasions  of  recognized  ownership  is  a 
question  of  interest.  Though  it  does  not  seem  to  be  of 
pressing  importance  in  the  present  discussion,  I  discuss  it 
briefly.  There  are  those  who  think  that  personalty  rather 
than  land  formed  the  first  basis  of  ownership.3  Next  to 
defence  of  life,  the  capture  and  retention  of  food  are  the 
earliest  forms  of  acquisition ;  the  acquisition  of  mates,  of 
slaves,  and  of  habitation  is  later.  No  doubt  movable  objects 
first  became  the  basis  of  property.  And  with  them  came 
relations,  even  if  unexpressed  and  unconsciously  felt,  of 
meum  and  tuum.     From  thence  came  the  disposition  which  is 

1  As  to  which  see  infra,  Sec.  IV.  Also  see  Pollock,  Torts,  21.  Felix 
mentions  some  savages  who  have  no  idea  of  acquisition  of  property. 
Felix,  Der  Einfluss  der  Natur  auf  die  Entw.  des  Eigenthums,  p.  3. 

2  See  Spencer,  Data  of  Ethics,  Chap.  II. 

3  Compare  Spencer,  Principles  of  Sociology,  Vol.  II.,  Part.  V.,  Chap. 
XV.,  §§536,  537  ;  Essays  in  Anglo-Saxon  Law,  "  The  Anglo-Saxon  Pro- 
cedure," Part  V.,  227,  and  other  parts  of  the  same  essay  ;  Schrader, 
Handelsgeschichte  u.  Warenkunde,  57  seq. 


Evidences  of  Physical  and  Social  Factors.  69 

implied  in  early  notions  of  seisin.1  The  acquisition  of  food 
is  a  primary  instinct  or  impulse  which  is  so  all-pervading 
that  it  seems  the  earliest  form  of  acquisition  and  the  pre- 
sumption, in  the  absence  of  countervailing  evidence,  of 
ownership.  It  is  not  unlikely  that  the  possession  of  mates 
and  slaves,  involving  war  and  capture,  may  have  antedated 
land  ownership  among  some  early  tribes.  Schoolcraft,  speak- 
ing of  the  Comanches,  says  :  "  They  recognize  no  distinct 
rights  of  meum  and  tuum,  except  to  personal  property, 
holding  the  territory  they  occupy,  and  the  game  that  depas- 
tures upon  it,  as  common  to  all  the  tribe  ;  the  latter  is  appro- 
priated only  by  capture."2  Of  the  Brazilian  Indians  it  is 
said  that  "  scarcely  anything  is  considered  strictly  as  the 
property  of  an  individual  except  his  arms,  accoutrements, 
pipe  and  hammock."3  Treating  of  beings  in  a  similar  state  of 
savagery,  another  author  says  that  "  personal  or  individual 
property  was  chiefly  what  each  wore  or  carried."4  The  same 
author  affirms  that  "  among  the  lower  races  the  distinction 
which  our  lawyers  make  between  real  and  personal  property 
appears  in  a  very  intelligible  way.  Of  the  land  all  have  the 
use,  but  no  man  can  be  its  absolute  owner.  The  simplest 
land  law,  which  is  also  a  game  law,  is  formed  among  tribes 
who  live  chiefly  by  hunting  and  fishing.  Thus,  in  Brazil, 
each  tribe  had  its  boundaries  marked  by  rocks,  trees,  streams, 
or  even  artificial  landmarks,  and  trespass  in  pursuit  of  game 
was  held  so  serious  that  the  offender  might  be  slain  on  the 
spot."5  "  At  this  stage  of  society  in  any  part  of  the  world, 
every  man  has  the  right  to  hunt  within  the  bounds  of  his 
own  tribe,  and  the  game  only  becomes  private  property  when 
struck."6 

1  That  seisin  of  personalty  as  well  as  of  reality  existed,  see  F.  W.  Mait- 
land,  The  Seisin  of  Chattels,  Law  Quarterly  Review,  Vol.  I.,  324  seq. 
See  authorities  in  last  preceding  note. 

2  Principles  of  Sociology,  Vol.  II.,  §537. 

3  Ibid. 

4Tylor,  Anthropology,  420. 

5  Ibid.  419;  Spencer,  Principles  of  Sociology,  Vol.  II.,  §538. 

*Tylor,  loo.  cit. 


70       An  Introduction  to  the  Study  oj  the  Constitution. 

The  same  customs  do  not  prevail  everywhere  among  sim- 
ilar tribes.  Yet  we  know  from  numerous  accounts  that  the 
Indians,  in  colonial  days,  in  North  America,  valued  terri- 
torial possessions,  not  because  they  were  the  basis  of  such 
rights  as  now  exist,  but  because  their  life  and  habits  made 
such  acquisitions  dear  to  them  in  the  same  way  that  the 
animal  values  his  food  or  his  lair  or  his  cave. 

Hunting,  trapping,  fishing  and  grubbing  for  roots  were 
known  to  the  savage ;  his  life  impelled  him  to  these.  And 
"  even  while  he  feeds  himself,  as  the  lower  animals  do,  by 
gathering  wild  fruit  and  catching  game  and  fish,  he  is  led  by 
his  higher  intelligence  to  more  artificial  means  of  getting 
these.  Rising  to  the  next  stage,  he  begins  to  grow  supplies 
of  food  for  himself.  Agriculture  is  not  to  be  looked  on  as 
an  impossible  invention,  for  the  rudest  savage,  skilled  as  he 
is  in  the  habits  of  the  food-plants  he  gathers,  must  know  well 
enough  that  if  seeds  or  roots  are  put  in  a  proper  place  in  the 
ground  they  will  grow."1  Agriculture,  as  other  attain- 
ments, was  a  gradual  acquisition.  Habits  are  slow  to  change, 
especially  when  there  is  as  little  intellectual  incentive  to 
change  as  prevails  among  early  people.  The  hunting  state 
is  not  voluntarily  abandoned  to  take  up  either  a  pastoral  or 
an  agricultural  occupation.  When  we  first  observe  either  of 
these  occupations  they  are  the  compulsory  duties  of  the 
women,  the  dependent  ones  or  the  serfs.2  The  search  for 
food  may  prevail  among  the  men,  but  it  will  be  that  which  is 
peculiar  to  the  hunting  life,  the  digging  of  roots  or  the  prim- 
itive cultivation  of  plants  being  forced  upon  those  who  could 
be  compelled  to  do  this  work.  When  the  phenomenon  arises, 
the  need  for  its  existence  has  previously  forced  its  adoption 
upon  the  group,  and  this  would  not  take  place  until  the  group 
had  enlarged  to  embrace  women  and  serfs ;  that  is,  it  would 
arise  as  members  were  added  to  the  group  who  had  to  live, 
but  could  not  live  except  in  the  digging  and  cultivation  of 

'Tylor,  Anthropology,  214. 

2  See,  in  this  connection,  Ross,  Early  History  of  Landholding  among 
the  Germans,  126,  note  6. 


Evidences  of  Physical  and  Social  Factors.  71 

roots  and  plants,  because  weakness,  or  opposition  on  the  part 
of  the  controlling  members,  would  render  it  impracticable 
for  them  to  subsist  by  the  chase  as  the  stronger  members  sub- 
sisted. Though  frequently  asserted,  it  is  not  always  true 
that  the  agricultural  stage  followed  the  pastoral  stage.  There 
are  localities  where  pastoral  life  prevails  because  the  terri- 
tory is  most  favorable  to  it  and  not  as  favorable  for  agricul- 
ture; so  there  are  localities  where  a  pastoral  occupation  is 
not  practicable,  at  least  in  early  stages  of  development.  The 
agricultural  stage  may  follow  upon  the  nomadic  life  of  hunting 
and  fishing;  the  pastoral  may  follow  it  also;  and  either  of 
these  may  follow  the  other  according  to  environment.  In 
Arabia,  southern  Russia,  and  on  the  western  plains  of  the 
United  States  a  pastoral  life  would  be  likely  to  prevail.  In 
the  alluvial  lands  of  rivers,  where  forests  interfered  with 
herding,  agriculture  would  follow  the  hunting  state,  espec- 
ially if  plants  would  grow  with  little  effort.  The  earliest 
forms  of  agriculture  would  be  with  sticks,  just  as  digging  for 
roots  might  be  carried  on.  The  planting,  would  be  less 
likely  to  be  in  ridges  than  in  holes,  and  the  things  planted 
would  be  such  as  were  familiar  to  the  neighborhood  and  as 
would  be  seen  to  grow.  The  pointed  stick,  hitched  to  a  pole 
and  yoked  to  oxen,  was  the  plow  of  the  ancient  Egyptian, 
and  his  hoe  was  a  pointed  stick.  The  Australian  and  other 
tribes  use  the  stick ;  the  early  Swedes  used  a  primitive  kind 
of  hoe  consisting  of  a  forked  stick  or  what  resembled  it.1 
Among  the  early  North  American  Indians  the  principal 
implement  of  agriculture  seems  to  have  been  the  hoe,  for 
which  they  often  used  the  shoulder-blade  of  the  bison  fixed 
into  a  handle  of  wood.  Wild  rice,  which  was  gathered  by 
the  women,  formed,  next  to  the  chase,  the  principal  article  of 
food  in  Michigan,  Wisconsin,  Iowa,  Minnesota,  as  well  as  the 

'Tylor,  Anthropology,  216  ;  Spencer,  Principles  of  Sociology,  Vol.  II., 
Part  V.,  Chap.  XV.;  Rawlinson,  History  of  Ancient  Egypt,  Chap.  VI.; 
Gromme,  The  Village  Community,  279  seq.;  such  was  also  the  practice  in 
early  days  of  ancient  Greece.  Schrader,  Sprachv.  und  Urg.,  417.  See 
ibid.  Part  IV.,  Chap.  V. 


72       An  Introduction  to  the  Study  of  the  Constitution. 

upper  valleys  of  the  Mississippi.1  There  is  some  advance  in 
the  character  of  implements  and  modes  of  cultivation  between 
the  earliest  forms  and  those  employed  by  the  North  American 
Indian,  and  a  still  further  advance  between  these  and  the 
implements  and  modes  of  agriculture  in  use  among  the 
ancient  Egyptians  ;  also  between  the  earlier  and  later  inhab- 
itants of  ancient  Greece.2 

It  is  not  my  purpose  to  write  the  history  of  agriculture. 
But  this  is  noticeable,  that  larger  social  aggregates  bring  in 
their  train  a  development  of  agriculture,  as  they  do  of  a 
developed  pastoral  condition.  And  these  occupations  are  in 
a  measure  prerequisites  to  this  aggregation  in  any  enduring 
form.  When  we  observe  it  in  Europe,  agriculture  assumes 
somewhat  primitive  forms,  yet  we  note  the  prevalence  of  a 
certain  series  of  customs  regulating  the  relations  between  the 
tribes  and  the  territory  that  betoken  a  growth  beyond  what 
is  indicated  by  purely  savage  tribes.  Among  the  aborigines 
of  Britain  whom  Caesar  speaks  of,  the  inland  ones  did  not 
sow  corn,  but  fed  upon  flesh  and  milk.3  The  inhabitants  of 
Kent,  however,  followed  agriculture,  and  so  did  many  of  the 
tribes  of  Gaul.4  The  Suevi,  he  says,  were  constantly  engaged 
in  war  and  hindered  from  the  pursuits  of  agriculture ;  never- 
theless some  agriculture  existed,  which  was  carried  on  by 
those  who  stayed  at  home.  Among  them  there  was  no 
private  or  separate  land,  nor  did  they  remain  more  than  one 
year  in  one  place  for  the  purpose  of  residence.  They  did  not 
live  much  on  corn  or  grain,  but  subsisted  mostly  on  milk 
and  flesh,  and  engaged  largely  in  hunting.3  Of  the  Germans 
he  said  that  they  did  not  pay  much  attention  to  agriculture, 
and  that  a  large  portion  of  their  food  consisted  of  milk, 
cheese  and  flesh ;  no  one  had  a  fixed  quantity  of  land  or  his 

1  Lubbock,  Prehistoric  Times,  539,  540.     See  also  ibid.  287. 
2Schrader,  Sprachv.  und  Urg.,  Part  IV.,  Chap.  V.,  416,  417. 
3  Interiores  plerique   frumenta  non  serunt,  sed  lacte  et  came  vivunt 
pellibusque  sunt  vestili,  D.  B.  G.  Lib.  V.,  14. 
4 Ibid.,  also  Lib.  IV.,  1. 
5  D.  B.  G-.  Lib.  IV.,  1.     See  Elton,  Origins  of  English  History,  119. 


Evidences  of  Physical  and  Social  Factors.  73 

own  individual  limits.1  Caesar  gives  his  idea  why  this  was 
so,  but  it  is  not  sustained  by  later  investigation.2  Tacitus 
wrote  150  years  later  than  Caesar,  and  in  his  day  the  Germans 
had  no  cities,  but  lived  scattered  and  apart,  "just  as  a  spring, 
a  meadow,  or  a  wood  attracted  them.":?  They  lived  in  rude 
habitations  and  villages,  each  household  group  having  a 
habitation  and  a  space  around  it.  Their  agricultural  toil 
consisted  in  scratching  rather  than  plowing  the  soil,  and 
their  crops  of  wheat  and  rye  were  small.  They  cultivated 
the  land  in  common,  and  their  fields  were  continually  shifted. 
Tacitus'  expression,  "Arva  per  annos  mutant  et  superest  ager" 
has  formed  the  basis  of  some  controversy.4  Landau  con- 
tends5 that  it  shows  the  prevalence  already  at  this  time  of 
what  is  known  as  the  three-field  system  of  agriculture ;  a 
system  prevalent  at  a  certain  stage  of  social  growth,  and  of 
which  further  mention  will  be  made  presently.  Upon  this 
theory  Landau,  relying  upon  the  long  continuance  of  agricul- 
tural customs,  bases  the  statement  that  there  was  no  material 
change  in  the  system  of  agricultural  landholdingfrom  this  early 
day  up  to  the  prevalent  system  of  landholdingin  the  middle  age. 
Dr.  Hanssen,  however,  puts  a  different,  and  I  think  more  accu- 
rate, interpretation  upon  this  text  of  Tacitus.  It  signifies  to 
him  that  such  agriculture  as  was  then  a  necessity  was  carried  on 
under  the  open-field  system  in  its  simplest  form — the  plowing 
up  of  new  ground  each  season,  which  then  went  back  to 
grass.0     It  reminds  him  of  that  wild,  primitive  condition 

'D.  B.  G.  Lib.  VI.,  22. 

2  Compare  Seebohm,  The  English  Village  Community,  Chaps.  VI.  and 
VII.,  and  passim ;  Landau,  Territorien,  Part  I.,  Die  Flurverfassung ; 
Hanssen,  Agrarhistorische  Abhandlungen,  Vol.  I.,  Art.  2,  Wechsel  der 
Wohnsitze  uud  Feldmarken  in  germanischer  Urzeit. 

36ermania,  XVI.;  Seebohm,  The  Eng.  Village  Community,  338  seq. 

4 See  Hanssen,  Agrarhistorische  Abhandlungen,  Vol.  I.,  126  seq.  The 
quotation  is  from  Chap.  XXVI.  of  the  Germania.  The  language  is  some- 
times translated  as  follows:  "The  arable  lands  are  annually  changed, 
and  a  part  left  fallow." 

5  Territorien,  61. 

"Agrarhistorische  Abhandlungen,  Vol.  I.,  128,  129.  To  same  effect 
see  Seebohm,  The  English  Village  Community,  412. 


74       An  Introduction  to  the  Study  of  the  Constitution. 

observed  among  barbarians,  according  to  which  new  fields 
are  continually  selected,  and  the  cultivation  of  the  soil  makes 
allowance  for  an  indefinite  number  of  years  during  which  the 
land  lying  fallow  may  recuperate.  There  is  then  so  much 
land  and  so  sparse  a  population  that  no  limitations  are  met 
with  in  the  quantity  any  tribe  may  enjoy.1  The  simpler 
system  of  open-field  husbandry  carried  on  by  the  free  tribes- 
men and  Taeogs  of  Wales  seems  to  have  been  in  its  main 
features  identical  with  that  described  by  Tacitus.  It  was  an 
annual  plowing  up  of  fresh  grass-land,  leaving  it  to  go  back 
again  into  grass  after  the  year's  plowing.' 

The  form  of  landholding  extant  in  Europe  until  quite  late 
in  the  middle  age,  and  widely  prevalent,  is  that  communal 
mode  known  as  the  three-field  system,  or  analogous  systems 
not  radically  distinct  from  it.  This  implies  a  surrender  of 
tribal  shifting-possession  and  the  submission  to  fixed  settle- 
ments. The  three-field,  or  later  form  of  open-field,  cultiva- 
tion implies  a  given  territorial  area  containing  a  given 
collection  of  habitations,  surrounded  by  a  small  lot  of  land, 
in  the  rear  of  or  surrounded  by  which  is  a  wide  expanse 
divided  off  into  more  or  less  numerous  strips,  which  are 
allotted  to  the  different  members  of  the  community  entitled 
to  share  in  the  product  of  the  common  fields.  These  strips 
were  separated  from  each  other  in  the  earlier  days  not  by 
hedges  but  by  green  balks  of  unplowed  turf;  there  were 
"  long  "  strips  and  "  short "  strips,  but  generally  the  normal 
strip  was  identical  with  the  mode  of  land  measurement.  In 
England  the  statute  acre  was  thus  identical  with  the  normal 
strip,  that  is,  a  furlong  of  40  rods  or  poles,  4  rods  in  width. 
The  strips  are  in  fact  roughly  cut  "  acres  "  of  the  proper 
shape  for  plowing.  The  furlong  is  the  "  furrow  long " — 
that  is,  the  length  of  the  drive  of  the  plow  before  it  is  turned. 
The  acre  marked  the  extent  of  a  day's  plowing,3  and  is  very 
ancient,  dating  back  to  German  usage  a  thousand  years  ago.4 

'Seebohm,  The  English  Village  Community,  309. 
*Ibid.  Ubid.  2,  124.  *Ibid.  3. 


Evidences  of  Physical  and  Social  Factors.  75 

The  whole  arable  area  was  divided  off  into  such  strips,  each 
township  embracing  thousands  of  thein.     Throughout  their 
whole  length  the  furrows  in  the  plowing  run  parallel  from 
end  to  end  ;   the  "  balks  "  which  divided  them  being,  as  the 
word  implies,  two  or  three  furrows  left  unplowed  between 
them.1     A  common  field-way  gives  access  to  the  strips,  run- 
ning along  the  side  of  the  furlong  and  the  ends  of  the  strips, 
or  a  strip  running  along  the  length  of  the  furlong  inside  its 
boundaries  and  across  the  ends  of  the  strips  is  utilized.    This 
is  called  in  English  communities   "head  land."     All  the 
owners  of  the  strips  in  a  furlong  have  the  right  to  turn  their 
plow  upon  the  head  land,  and  the  owner  of  the  head  land 
must  wait  until  all  the  others  are  plowed  before  he  can  plow 
his  own.     When  a  hillside  formed  part  of  the  open  field  the 
strips  almost  always  were  made  to  run,  not  up  and  down 
hill,  but  horizontally  along  it,  and  in  plowing  the  custom 
for  ages  was  always  to  turn  the  sod  of  the  furrow  down  hill, 
the  plow  consequently  always  returning  one  way  idle.    Every 
year's  plowing  took  a  sod  from  the  higher  edge  of  the  strips 
and  put  it  on  the  lower  edge,  the  result  being  that  after  a  while 
the  strips  became  long,  level  terraces  one  above  the  other, 
and  the  balks  between  them  grew  into  steep  rough  banks  of 
long  grass  covered  with  brambles  and  bushes.2     There  were 
other  features  of  this  form  of  open-field  cultivation,  but  they 
cannot  be  mentioned  here.    The  strips  were  allotted  according 
to  some  number  or  mark  for  each  sharer,  and  each  received 
in  regular  order  a  strip,  then  the  first  again  took  a  strip  and 
the  allotment  went  on  as  before  until  the  arable  land  was 
exhausted.     A  division  was  made  every  year.     The   pro- 
ducing factor  was  the  day's  plowing,  which  constituted  the 

1  Seebohm,  The  English  Village  Community,  4.  Bale  is  said  to  be  a 
Welsh  word  ;  and  when  the  plow  is  accidentally  turned  aside  and  leaves  a 
sod  of  grass  unturned  between  the  furrows,  the  plow  is  said  to  "  bale." 
For  a  further  explanation  see  Gomme,  The  Village  Community.  75  seq. 

2Seebohm,  English  Village  Community,  5,  6;  Gomme,  The  Village 
Community,  84  seq.  See  Gomme  for  evidence  of  its  great  antiquity,  loc. 
cit.,  75  seq.     Also  the  authorities  cited  in  note  2,  p.  76,  infra. 


76       An  Introduction  to  the  Study  of  the  Constitution. 

basis  of  early  divisions ;  making  division  depend  on  actual 
usage.  Connected  with  these  "  village  communities "  so- 
called  were  rights  of  common  pasturage  in  fields  that  lay 
fallow,  of  mast  and  fuel,  and  for  habitations,  in  the  woods. 
They  were  rights  that  only  came  to  be  valued  when  these 
communities  by  increase  and  migration  came  to  impinge  upon 
one  another.1  This  open-field  mode  of  cultivation,  carried 
on  in  common,  is  a  later  form  of  that  communal  holding  of 
territory  which,  already  existing  among  purely  nomadic  tribes, 
in  a  condition  of  barbarism,  did  not  cease  to  exist  until  the 
rise  of  cities  and  the  accumulation  of  property  in  individuals 
put  a  stop  to  it.2  It  left  its  impress  on  the  manorial  holdings 
of  Europe  and  other  countries;3  upon  courts  and  procedure. 
From  these  communal  groups  by  direct  descent  come  the  jury 
and  the  Parliament.  The  Roman  doctrines  of  succession  or 
inheritance  were  derived  from  this  form  of  property -holding.4 

An  outline  of  the  process  of  development  of  early  landhold- 
ing  would  indicate  the  following. 

Beginning  in  the  continuance  of  the  group  or  mass  com- 
posing an  early  kinship  group  upon  a  given  territory,  as  the 
group    enlarges   and   slaves   and  women  do  labor   and  the 

1  Compare  Seebohm,  The  English  Village  Community,  Chap.  XL;  Waitz, 
Deutsche  Verfassungsgeschichte,  Vol.  I.,  Chap.  IV.;  Hanssen,  Agrarhis- 
torische  Abhandlungen,  passim;  Ross,  Early  History  of  Landholding 
among  the  Germans,  24,  25  ;  Woolsey,  Political  Science,  Vol.  I.,  52  seq.; 
Stubbs,  Constitutional  History  of  England,  Vol.  I.,  Chap.  II.,  10  seq.', 
Maine,  Village  Communities  in  the  East  and  West,  Lecture  III.,  78  seq. ; 
Hearn,  The  Aryan  Household,  Chap.  IX.;  Von  Maurer,  Markenverfass- 
ung,  Chap.  I.,  Einleitung ;  Landau,  Die  Territorien,  116;  Meitzen,  Die 
Ausbreitung  der  Deutschen  in  Deutschland. 

2Laveleye,  Primitive  Property,  3,  4.  That  the  Greeks  and  Italians 
passed  through  similar  forms  see  Schrader,  Handelsg.  und  Warenk.,  p.  149 
seq.;  Seebohm,  English  Village  Communities,  Chap.  IX.;  Scrutton,  Com- 
mons and  Common  Fields. 

3 Seebohm,  The  Eng.  Village  Community,  8  seq.;  Waitz,  D.  V.  G., 
passim. 

4Leist,  Graeco-Ital.  Reehtsgeschichte,  Book  I.;  Holmes,  Common  Law, 
343  ;  Maine,  Ancient  Law,  Chap.  VI.;  Fustel  de  Coulanges,  Ancient  City, 
Book  II.,  Chaps.  VI.,  VII. 


Evidences  of  Physical  and  Social  Factors.  77 

surroundings  are  favorable,  social  forms  grow  into  a  culti- 
vating or  herding  body,  which,  as  the  group  throws  off  other 
groups,  or  as  the  groups  otherwise  increase  in  number, 
become  circumscribed  in  area.  At  first  the  cultivation  is 
temporary  and  intermittent.  The  natural  vegetation  may  be 
burned  on  the  surface,  and  grain  may  be  sown  in  the  ashes, 
or  plants  may  be  placed  in  holes  or  cavities  made  rudely  with 
the  sharp  stick  or  the  rude  hoe  or  plow.  Where  the  soil  is 
plentiful  it  rests  for  a  long  series  of  years.  In  this  way  the 
Tartars  cultivate  buckwheat,  and  many  tribes  still  cultivate 
land.  Later  on,  a  small  portion  of  the  land  is  successively 
put  in  cultivation,  according  to  the  triennial  rotation,  develop- 
ing into  the  three-field  system,  the  greater  part  remaining 
common  pasturage  for  the  herds  of  the  village.  Afterwards 
the  cattle  are  better  tended,  the  manure  is  collected,  and  the 
fields  are  enclosed.  Roads  and  ditches  are  marked  out,  and 
the  land  is  permanently  improved  by  labor.  Then  the  fallow 
is  curtailed,  powerful  manures  are  purchased  in  the  towns  or 
devised  by  industry;  capital  is  sunk  in  the  soil  and  increases 
its  productiveness.1  This  meager  outline  does  not  show 
how  gradual  the  change  was,  and  how  the  necessities  of  each 
recurring  situation  forced  the  tribe  or  group  into  the  use  of 
new  expedients  rendered  familiar  by  the  surroundings.  Each 
succeeding  step  in  the  progress  is  an  increment  of  experience, 
produced  spontaneously  for  the  most  part.2 

Let  us  note  a  few  more  of  the  stages  and  characteristics  of 
the  development  referred  to,  and  the  regulations  by  which 
these  forms  of  landholding  were  controlled. 

Like  the  beasts  of  the  field,  the  forest  Veddahs  wander  about 
in  small  family  groups,  destitute  of  any  political  organization 

'Laveleye,  Primitive  Property,  pp.  4,  5  ;  Hanssen,  Agrarhistorische 
Abhandlungen,  Vol.  I.,  passim  ;  Landau,  Die  Territorien,  Book  I.,  Part 
I.;  Digby,  History  of  the  Law  of  Real  Property,  Chap.  I.,  Sec.  I.,  §1. 

2 See  Taylor,  The  Origin  of  the  Aryans,  passim,  and  cf.  ibid.,  pp.  186, 
193.  The  effect  of  Dr.  Isaac  Taylor's  works  will  unquestionably  be  to 
clear  up  many  obscure  questions  relating  to  early  life.  See  also  Schrader, 
Sprachv.  und  Urg. 


78       An  Introduction  to  the  Study  of  the  Constitution. 

or  of  any  definite  religious  notions.  Nomad  hunters,  they 
live  almost  exclusively  on  flesh,  which  till  recently  was  eaten 
raw.  They  build  no  huts,  dwelling  under  the  branches  of  tr\?es 
or  in  caves.1  All  the  possessions  they  took  note  of  were  what 
an  animal  would  value.  The  Tasmanians  looked  upon  those 
who  came  upon  their  hunting  grounds  as  enemies.2  Legal 
authority  was  unknown  to  them  in  their  primitive  state ;  so 
was  real  property.3  Among  the  Fijians  slaves  exist,  and  the 
lands  are  cultivated  by  them.  The  women  are  utilized  for 
similar  purposes,  frequently  being  treated  in  the  same  manner 
as  beasts  of  burden.  They  do  field  work,  carry  heavy  loads,  etc.4 
In  Arabia  slavery  exists.  Some  of  the  Arab  tribes  are  still  low 
in  the  scale  of  civilization,  and  recognize  no  general  head,  but 
are  subdivided  into  countless  bands  following  a  nomadic  life. 
The  Bedouin  Arabs  are  not  savages,  they  have  a  developed 
pastoral  life.  They  assert  title  in  the  soil,  and  visit  with 
bloody  revenge  a  trespass.  They  recognize  the  possession 
involved  in  the  places  of  habitation  of  their  different  groups. 
The  women  sometimes  herd  the  flocks,  milk  the  goats,  and  go 
to  war.5  Among  the  Todas,  nearly  every  mund,  that  is,  group 
or  subdivision  or  clan  of  the  tribe,  has  its  duplicate  and  trip- 
licate areas,  to  which  they  migrate  at  certain  seasons,  both 
for  the  sake  of  fresh  pasturage  and  with  a  view  of  escaping 
the  inclemency  of  situations  exposed  to  the  west  monsoon 
rains  and  wind.  Each  clan  has  grazing  and  forest  land  of  its 
own,  which  is  divided  between  the  different  lesser  groups, 

'Rectus,  Asia,  Vol.  III.,  p.  370.  See  J.  Davy,  Travels  in  Ceylon,  p. 
118;  Bailey,  in  Transactions  Eth.  Soc,  N.  S.,  II.,  p.  281.  See  also  for 
tribes  in  a  similar  condition,  Tacitus,  Germania,  Chap.  46;  Rectus, 
Primitive  Folk,  Chap.  I. 

2Bonwick,  Daily  Life  and  Origin  of  the  Tasmanians,  p.  83. 

3Tasmanian  Jour.,  I.,  p.  253  ;  Bonwick,  supra,  83. 

4U.  S.  Ex.  Ex.,  III.,  p.  97;  Erskine,  Jour,  of  a  Cruise  among  Islands 
of  the  West  Pacific,  214. 

5  Compare  J.  Petherick,  Egypt,  the  Soudan  and  Central  Africa,  57, 136, 
178;  Palgrave,  Journey  through  Central  and  Eastern  Arabia,  1,  27,  35, 
274;  Burkhardt,  Bedouins,  I.,  356;  Rambles  in  the  Deserts  of  Syria,  9; 
Smith,  Kinship  in  Arabia,  passim. 


Evidences  of  Physical  and  Social  Factors.  79 

each  group  being  located  on  its  own  land.  These  so-called 
villages  are  the  respective  abodes  of  a  family  or  intimately 
related  portion  of  a  clan  whose  cattle  are  herded  together. 
The  land  belongs  to  the  village  community  for  the  time  being 
and  cannot  be  alienated.  The  milk  and  what  grain  is  gathered 
are  divided  among  the  members  of  the  village  each  day.  The 
unconsumed  balance  and  the  cattle  are  considered  the  prop- 
erty of  the  males  of  the  community.1  The  women  are  the 
menials  among  them.  Among  the  Iroquois  the  individual 
could  not  obtain  the  absolute  title  to  land,  but  he  could 
reduce  unoccupied  lands  to  cultivation  to  any  extent  he 
pleased,  and  so  long  as  he  continued  to  use  them  his  right  to 
their  enjoyment  was  protected  and  secured.  No  one  among 
the  Koosas  of  South  Africa  possesses  landed  property ;  the 
individual  sows  his  grain  or  seed  wherever  he  can  find  a 
convenient  spot.2  Among  the  Israelites,  a  pastoral  and  an 
agricultural  people,  communal  forms  of  holding  undoubtedly 
prevailed,  for  they  had  no  private  ownership  in  land;  in  fact, 
possession,  communal  possession,  was  at  the  base  of  their 
customs.3 

Putting  together  and  comparing  evidences  of  early  Irish 
and  Welsh  holdings,  it  appears  that  the  chief  of  the  tribe  cor- 
responds less  with  the  lord  of  a  manor  than  a  king.  His  office 
is  not  hereditary,  but  elective.  The  tribesmen  are  men  of  the 
tribal  blood,  and  equal  blood  with  the  chief.  They,  therefore, 
are  not  serfs.  They  are  not  allodial  holders,  for  they  hold 
tribal  land.  The  taeogs  are  not  generally  the  serfs  of  the  free 
tribesmen,  but,  if  serfs  at  all,  of  the  chief.      They  are  more 

1  Marshall,  A  Phrenologist  among  the  Todas,  59,  206.  See  also  Spencer, 
Principles  of  Sociology,  Vol.  II.,  §538. 

2  Spencer,  sxipra,  §538. 

3S.  Mayer,  Rechte  der  Israeliten,  Romer  u.  Athener,  Vol.  I.,  §102. 
See  as  to  what  extent  this  was  also  true  of  the  Athenians,  ibid.,  §104. 
See  also  his  views  regarding  the  Romans,  §103.  See  also  ibid.,  Vol.  II., 
§152  seq.  Cf.  Hirsch  B.  Passel,  Das  Mos.iisch-Rabbinische  Civilrecht, 
Vol.  I.,  §304  seq.;  Schrader,  Sprachv.  und  Urg.,  Part  IV.,  Chaps  V. 
and  XII.;  Leist,  Graeco-Ital.  Rechtsgeschichte,  Book  I.;  same,  Rom. 
Societas;  Hermann,  Griechische  Antiquitaten,  Vols.  I.  and  II. 


80       An  Introduction  to  the  Study  of  the  Constitution. 

like  Roman  coloni  than  mediaeval  serfs.  But  they  are  easily 
changed  into  serfs.  The  slaves  in  household  or  field  service, 
more  or  less  numerous,  are,  like  the  cattle,  traded,  and  are 
reckoned  as  cattle.  These  three  tribal  orders  of  men,  with 
their  large  households  and  cattle  in  the  more  or  less  nomadic 
stage  of  the  tribal  system,  move  about  from  place  to  place, 
and  wherever  they  go,  what  may  be  called  tribal  houses  must 
be  erected  for  them.  These  houses  are  built  of  trees  newly 
cut.  "A  large  straight  pole  is  selected  for  the  rooftree.  Six 
well-grown  trees,  with  suitable  branches  apparently  reaching 
over  to  meet  one  another,  and  of  about  the  same  size  as  the 
rooftree,  are  stuck  upright  in  the  ground  at  even  distances 
in  two  parallel  rows — three  in  each  row.  Their  extremities 
bending  over  make  a  gothic  arch,  and  crossing  one  another 
at  the  top  each  pair  makes  a  fork,  upon  which  the  rooftree  is 
fixed.  These  trees  supporting  the  rooftree  form  the  nave  of 
the  tribal  house.  Then,  at  some  distance  back  from  these 
rows  of  columns  or  forks,  low  walls  of  stakes  and  wattle  shut 
in  the  aisles  of  the  house,  and  over  all  is  the  roof  of  branches 
and  rough  thatch,  while  at  the  ends  are  the  wattle  doors  of 
entrance."1  Here  the  free  tribesmen  composing  a  household, 
if  such  it  may  be  called,  (perhaps  it  was  a  later  form  of  the 
kinship  group,)  comprising  several  generations,  lived  to- 
gether. In  later  Welsh  law,  the  name  for  the  separate  divi- 
sions (Gwelys)  made  by  the  central  columns  of  the  house, 

"Seebohm,  The  English  Village  Community,  239.  Mr.  Elton,  quoting 
Herodian  and  Dion  Cassius,  speaking  of  a  people  who  inhabited  the  Gram- 
pians before  the  day  Mr.  Seebohm  speaks  of,  says  :  "They  had  no  towns, 
or  fields,  or  houses,  but  roamed  on  the  wild  and  waterless  mountains,  or  in 
deserts  or  marshy  plains.  Their  scanty  existence  was  gained  in  hunting, 
though  they  got  some  small  supplies  of  food  from  their  herds  and  flocks ; 
and  they  eked  it  out  with  herbs,  with  fruit  and  nuts,  and  even  with  the 
bark  of  the  trees  in  the  forest.  They  lived  naked  and  barefooted,  in  a 
savage  community,  without  any  organization  of  state  or  family  ;  and  even 
the  wives  and  children  were  regarded  as  the  property  of  the  horde." 
Originsof  Eng.  Hist.,  169, 170.  See  following  pages  in  same  chapter.  The 
Aryan  hordes,  he  claims,  were  more  advanced  when  they  came  into  Europe. 
Ibid.  161. 


Evidences  of  Physical  and  Social  Factors.  81 

described  the  shares  which  descendants  had  in  the  property 
left  to  them.  In  the  times  when  the  tribesmen  shifted  from 
place  to  place,  the  local  names  were  taken  from  natural  char- 
acteristics, the  streams,  the  woods,  the  hills  which  marked 
the  site.  The  weregild  or  compensation  for  blood  was  the 
means  of  satisfying  those  who  permitted  themselves  to  be 
appeased.1  By  the  Irish  custom  of  gavelkind,  the  inferior 
tenantries  were  partible  among  all  the  males  of  the  sept,  both 
bastards  and  legitimate ;  and,  after  partition  made,  if  any  one 
of  the  sept  had  died,  his  portion  was  not  divided  among  his 
sons,  but  the  chief  of  the  sept  made  a  new  partition  of  all 
the  lands  belonging  to  that  sept,  and  gave  every  one  his  part 
according  to  his  antiquity.3  The  sept  was  a  smaller  body 
than  the  clan  or  tribe.  The  latter  was  a  large  and  miscella- 
neous body,  whose  relationship  of  blood  with  the  chief  and 
the  mass  of  free  tribesmen  was  a  mere  fiction.  The  sept  was 
a  much  smaller  body,  whose  proximity  to  a  common  ancestor 
was  close  enough  to  admit  of  their  kinship.3  Among  the 
German  tribes  in  a  later  day  than  that  already  mentioned, 
especially  where  hofe  or  villages  existed,  the  land  was 
divided  into  habitations  and  areas  around  them,  the  arable 
lands,  the  pasture  lands  and  the  wood  lands.  Within  the  hof 
the  kinsmen  or  villagers  dwelt.  Each  habitation  was  sur- 
rounded by  its  own  area  or  yard.  Each  household  had  the 
absolutely  exclusive  use  and  enjoyment  of  the  dwelling  and 

aSee  regarding  Welsh  and  Irish  landholding,  Seebohm,  The  English 
Village  Community,  Chaps.  VI.  and  VII.,  from  which  the  above  state- 
ments are  taken.  See  also  Maine,  Early  History  of  Institutions,  Lectures 
IV.,  V.,  VI.,  VII.,  in  which  the  development  of  Irish  land  law  is  shown. 
See  on  this  subject  also  articles  by  Judge  O'Connor  Morris  in  the  Law 
Quarterly  Review,  Vol.  III.,  p.  133  ;  Vol.  IV.,  p.  1. 

2 Sir  John  Davis,  as  quoted  by  Maine.  See  Early  History  of  Insti- 
tutions, 186. 

"Maine,  Early  Hist,  of  Inst.,  186,  187.  The  analogy  between  this 
picture  and  that  of  the  Todas  seems  to  be  striking.  See  supra.  There 
seems  to  be  an  advance,  however,  in  the  Irish  system,  for  inheritance  of 
some  kind  seems  to  be  recognized.  "According  to  his  antiquity"  seems 
to  point  to  inheritance  or  descent. 


82       An  Introduction  to  the  Study  of  the  Constitution. 

t- 

this  area,  under  the  regulations  of  the  tribe.  These  separate 
households,  which  were  regarded  as  appurtenant  to  the  habit- 
ations, were  entitled  to  shares  in  the  arable  land,  pasture 
land  and  wood  land.  The  house  determined  the  share  of  the 
field,  the  field  the  share  of  the  pasture ;  the  pasture  and 
house  determined  the  share  of  the  forest.1  Serfs  seem  always 
to  have  existed.2  The  allotments  were  made  and  held  sub- 
ject to  an  elaborate  code  of  regulations.3  Some  of  these  will 
be  mentioned  presently.  Hanssen,  whose  recent  inquiries 
into  the  subject  make  his  judgment  worthy  of  being  accepted, 
says  that  the  /io/and  dorf,  with  their  parts  and  open-field  char- 
acteristics, are  out  of  one  and  the  same  mold.  The  family  or 
household  tie  which  formed  the  basis  of  the  dorf  and  embraced 
the  feldmark  was  already  created  at  the  time  of  the  settle- 
ment in  Germany;  this  family  tie  was  founded  on  early 
notions  of  kinship.  This  personal  tie  was  cemented  and 
strengthened  by  the  tie  produced  by  living  and  cultivating 
or  herding  together.1  It  became  expressed  in  the  word 
" Nachbarschaft,"  that  is,  neighbors  collectively;  not  in  the 
sense  that  is  intended  when  neighbors  in  cities  are  spoken  of. 
"  We  neighbors"  signifies  the  collective  members  of  the  dorf 
in  their  aggregate  unity. 

Among  these  common  regulations  grew  up  and  were  ob- 
served, were  enforced  through  many  centuries,  undergoing 

'Von  Maurer,  Marken-Verfassung,  £20  ;  Waitz,  Deutsche  Verfassung- 
Geschichte,Vol.  I.,  Chap.  IV.,  p.  121,  Vol.  III.,  Chap.  V.,  Vol.  V.,  Chap. 
IV.;  Landau,  Die Territorien,  Parti.;  Hanssen,  Agrarhistorische  Abhand- 
lungen,  Vol.  I.;  Hearn,  Aryan  Household,  Chap.  IX.,  p.  219;  Grimm, 
Rechtsalterthumer,  Book  III.,  p.  491  seq.;  Meitzen,  Ausbreitung  der 
Deutschen,  etc. 

2  Meitzen,  Ausbreitung  derDeutsehen,  15  ;  Zoepfl,  D.  R.  G.,  Vol.  II.,  ?7, 
par.  II.;  Germania,  Chap.  XXV. 

3See  Von  Maurer,  Marken-Verfassung,  Appendix,  Nos.  4,  5,  6;  Dorf- 
Verfassung,  Appendix;  Hanssen,  Die  Dorfwillkuren,  etc.,  in  his  Agrar- 
historische Abhandlungen,  Vol.  II.,  84  ;  Grimm,  Rechtsalterthumer, 
Book  III. 

4 Die  Dorfwillkuren,  etc.,  in  Agrarhistorische  Abhandlungen,  Vol.  II., 
84. 


Evidences  of  Physical  and  Social  Factors.  83 

little  change  until  they  finally,  when  writing  became  more 
general,  were  transcribed  in  more  durable  form.  The  neigh- 
borhood must  appear  at  a  certain  place  upon  the  sound  of  the 
bell  or  alarm;  regulations  regarding  the  tending  of  bulls, 
kine,  swine,  the  removal  of  stones  from  the  fields  which  are 
to  be  cultivated,  the  covering  up  of  the  roads  or  ways  which 
may  have  been  dug  up,  the  prevention  of  estrays,  the  building 
of  chimneys  or  flues,  the  management  of  the  plow  in  the  field, 
grazing  of  horses  and  cattle,  use  of  fire,  disposition  of  the 
manure,  preservation  of  boundary  stones,  burials,  and  num- 
erous other  details  of  their  village  life  can  be  found.1  They 
are  not  entirely  alike  in  any  two  communities,  some  being 
fuller  of  details  than  others.  But  all  sorts  of  things  are  reg- 
ulated, and  sometimes  in  the  most  primitive  mode.  Nor 
have  such  rules  yet  ceased  to  exist.2  They  certainly  existed 
in  England  when  the  Pilgrims  came  to  America,  for  we  see 
these  bringing  them  along.3  We  shall  see  in  a  later  chapter 
how  the  regulations  of  these  early  social  aggregates  influ- 
enced procedure  through  the  court-leet  and  the  court-baron. 
And  such  regulations  partly  constituted  the  basis  of  customs 
upon  a  large  scale  in  larger  social  forms. 

The  quest  after  sustenance  and  other  animal  pleasures 
begot  antagonism,  animal  and  savage  antagonism,  and  war, 
and  these  begot  slavery  and  oppression  of  the  weak.  The 
captives  and  the  weak  members  followed  the  occupation 
which  necessity  forced  upon  them  and  superior  power  forced 

1  Hanssen,  Agrarhist.  Abh.,  Vol.  II.,  107  seq. 

Contemporary  Review,  July,  1881,  W.  Steadman  Aldis,  Notes  from  a 
German  Village. 

3  Johns  Hopkins  University  Studies,  Vol.  I.,  Number  II.,  The  Germanic 
Origin  of  New  England  Towns,  by  Herbert  B.  Adams;  Number  IV., 
Saxon  Tithingmen  in  America,  by  the  same  author  ;  Village  Communities 
of  Cape  Ann  and  Salem,  same  author,  being  Numbers  IX.  and  X.  of  same 
volume.  See  also  similar  phenomena  in  Maryland,  same  volume,  Num- 
bers VI.  and  VII.,  Parish  Institutions  of  Maryland,  by  Edward  Ingle, 
and  Old  Maryland  Manors,  by  John  Johnson. 

4  Cf.  Maurer,  Mark-,  Hof-,Dorf-  u.  Stadt-Verfassung ;  Waitz,  D.  V.  G.; 
Hanssen,  Agrarhist.  Abhandlungen. 


84       An  Introduction  to  the  Study  of  the  Constitution. 

them  to  continue.1  This  has  already  been  affirmed.  But 
note  the  deduction  :  the  warrior  contemns  the  labor  of  the 
women  and  the  slaves ;  his  occupation  is  war  and  chase ; 
theirs  to  dig  for  roots  or  tend  the  herds  or  to  pursue  agricul- 
ture and  herding.  The  slaves  do  not  always  remain  such, 
nor  does  a  group  remain  intact.  The  kinship  group,  if  it  can 
be  called  such,  receives  into  it  the  slaves,  and  in  time  what 
was  the  occupation  of  the  weak  and  the  dependent  would 
become  the  duty  of  many  others.  The  prowess  attending 
war  always  kept  up  a  class  of  independent  or  free  men,  whose 
occupation  was  to  govern  and  to  pursue  war,  hunting,  fishing, 
etc.  These  formed  the  governing  element  in  the  Grecian 
home  and  polis.  The  dependent  element  gave  rise  to  an 
industrial  class.  The  one  expanded  in  one  direction,  the  other 
in  an  opposite  direction  ;  one  made  for  war  and  tyranny,  the 
other  for  peace  and  industry.  The  development  of  the  one 
led  to  a  nobility  and  armies,  the  development  of  the  other  to 
commerce,  manufactures  and  industrial  cities.  Both  were 
gradual  in  their  expansion,  each  acted  and  reacted  on  the 
other,  and  both  largely  involved  unconscious  processes.2 
Property  on  an  enlarged  scale,  individual  property,  was  an 
outcome.  Let  us  note  still  further  the  development  of  property. 
The  feudal  system,  which  constitutes  so  conspicuous  an  element 
in  English  law,  is  by  no  means  peculiar  to  it.  That  system 
came,  it  is  said  by  some  English  jurists,  from  the  Normans 
who  conquered  England ;  but  this  is  only  partially  true.8 
Feudalism,  that  is,  that  system  of  landholding  which  implies 
a  relation  between  lord  and  vassal,  in  virtue  of  which  the. 
former  gives  protection  while  the  latter  renders  homage  and 
service,  not  only  prevailed  on  the  continent  of  Europe,  but  it 
likewise  prevailed  wherever  the  military  art  had  so  far  devel- 
oped as  to  create  a  nobility  as  distinguished  from  those  who 

1  Speaking  in   his  Rechtsalterthumer  of  liegende  habe,  Grimm  says : 
"  Jene  nach  altstrengem  Recht  kann  nur  Freien  zustehen,"  491. 

2  Worship  of  gods   may   have  tended  to  establish  classes  also.     See 
Ancient  City,  Book  IV.;  Leist,  Graeco-Ital.  R.  G.,  Book  I. 

3Digby,  History  of  the  Law  of  Real  Property,  Chap.  I.,  Sec.  II. 


Evidences  of  Physical  and  Social  Factors.  85 

were  of  inferior  classes.  There  are  some  evidences  of  its 
existence  in  Rome,  for  Mr.  Seebohm  traces  some  of  its  inci- 
dents to  Rome.1  It  existed  in  Japan,2  in  China,3  Greece,4 
among  the  tribes  of  the  Caucasus.5  And  elsewhere  evi- 
dences of  its  existence  will  be  found.  The  word  probably 
is  a  Latin  recoinage  of  a  word  sprung  from  an  old  Teutonic 
root  (Lombardian  fin,  Old  High  German  fehu  [vieK],  Gothic 
Jaihu)  signifying  cattle  or  property;  cattle  being  an  early 
form  of  property,  antedating  the  definite  existence  of  feudal 
forms.0  Feudalism  is  to  be  seen  in  the  old  Roman  obsequium? 
The  indications  are,  as  may  be  seen  in  those  localities 
where  feudalism  is  now  in  a  state  of  formation,  as  among  the 
tribes  of  Asia,  that  where  capture  of  women  and  the  creation 
of  serfs  became  a  practice,  the  needs  of  the  group  or  groups 
in  question  had  developed  beyond  a  mere  family  form,  and 
that  warfare  had,  in  addition  to  the  chase  and  search  for  sus- 
tenance, become  an  outgrowth,  a  spontaneous  feature  of 
developing  social  existence.  And  as  war  is  not  possible 
unless  it  gives  opportunity  for  the  development  of  headship 
or  chieftainship,  the  natural  result  of  war  was  superior 
prowess,  superior  possessions  of  women  or  serfs  or  cattle  or 
land,  among  the  divisions  which  were  made  by  the  members 
of  the  tribe.     I  take  it  that  the  very  earliest  form  of  owner- 


1  The  English  Village  Community,  263  seq.  See  also  S.  Mayer,  Rechte 
der  Israeliten,  Romer  u.  Athener,  Vol.  II.,  §134,  p.  62  seq.;  Marquardt, 
Romische  Stadtsverwaltung,  Vol.  I.,  p.  3  seq.     See  Latin  obsequium. 

2Griffis,  The  Mikado's  Empire,  index,  Feudalism. 

3  Laveleye,  Primitive  Property,  265. 

4  Ibid.  See  also  Pustel  de  Coulanges,  Ancient  City,  Book  II.,  Chap. 
VII.,  Book  IV,  Chap.  V. 

6R6clus,  Earth  and  its  Inhabitants,  Asia,  Vol.  I.,  56  ;  Ibid.  58;  Ibid. 
93;  Ibid.  95;  Ibid.  114. 

6  Digby,  History  of  the  Law  of  Real  Property,  p.  32,  note. 

7  See  Leist,  Zur  Geschichte  der  romischen  Societas.  Cf.  Latin  Vocab- 
ulary, Obsequium.  For  similar  ancient  Greek  evidences  see  Platner, 
Beitrage,  etc.,  Chap.  V.;  Leist,  Graeco-Ital.  R.  G.,  Book  I.;  the  existence 
of  the  doctrine  of  primogeniture  among  them  would  seem  to  sustain  the 
same  position.  Meier  and  Schomann,  Att.  Process.,  Vol.  II.,  pp.  573, 
574. 


86       An  Introduction  to  the  Study  of  the  Constitution. 

ship  was  common  ownership  among  a  group  of  greater  or  lesser 
size,  and  that  the  extension  of  groups  not  only  led  to  dif- 
ferent occupations,  but  also  led  to  the  valuation  of  new  and 
more  numerous  objects.  In  any  event,  when  we  see  social 
forms  beyond  the  mere  early  kinship  group,  we  see  serfdom, 
especially  where  a  pastoral  or  agricultural  life  has  come  to  be 
followed ;  and  these  imply  the  pursuit  of  warfare  and  the 
existence  of  a  class  devoted  to  military  pursuits  as  distin- 
guished from  those  following  the  pursuit  of  accumulating  sus- 
tenance. In  the  large  amount  of  testimony  at  hand  relative 
to  the  development  of  modern  governments  and  institutions 
one  can  hardly  fail  to  discover  innumerable  evidences  of 
these  statements.1 

The  beginnings  of  feudalism,  as  the  word  indicates,  are  not 
to  be  confined  to  possession  or  enjoyment  of  land,  they  may  be 
traced  even  in  a  pastoral  condition.2  The  chief  who  was 
recognized  as  the  possessor  of  superior  herds  or  shares, 
though  little,  if  at  all,  more  than  the  head  of  a  family  group, 
except  that  his  prowess  may  have  contributed  to  give  him 
command  over  groups  instead  of  over  individuals,  would  be  as 
much  the  factor  of  feudalism  as  the  later  cyning  or  king.  The 
likelihood  is  that  the  beginnings  of  manorial  life — the  prevail- 
ing characteristic  of  developed  feudalism — must  be  traced  to 
that  form  of  holding  which  implied  inferior  herdsmen  or 
cultivators  of  the  soil  and  independent  lords  or  freemen.  Such 
a  condition  Mr.  Seebohm  thinks  existed  in  England  in  pre- 
Norman  days,  and  if  we  may  trust  the  evidence  of  the  com- 
parative jurists  and  historians  of  Germany  and  France, 
existed  there  as  far  back  as  authentic  history  goes.    Evidence 

1  The  views  of  Fustel  de  Coulanges  (Ancient  City,  Book  II.,  Chaps.  VI. 
and  VII.)  seem  to  attribute  a  different  course  of  development  in  ancient 
times  to  the  Hindoos,  Greeks  and  Romans ;  but  they  can  be  reconciled  by 
the  observation  that  he  attributes  a  too  elaborate  constitution  to  the 
ancient  household  or  kinship  group.  It  was  rather  more  barbarous  in 
form  than  he  seems  to  think.  Cf.  Smith,  Kinship  in  Arabia ;  R<§clus, 
Primitive  Folk. 

2Maine,  Early  Law  and  Custom,  341  seg. ,  esp.  346.     See  supra  note  7. 


Evidences  of  Physical  and  Social  Factors.  87 

points  to  the  same  phenomena  in  ancient  Greece.1  Yet  the 
cultivators  and  herdsmen  had  in  a  measure  improved  their 
condition,  becoming  an  essential  part  of  the  village  or  place 
of  repose,  and  obtaining  a  larger  recognition  by  others  in  the 
administration  of  the  affairs  of  the  group.  And  this  condition 
might  have  continued  to  improve  had  not  wars  imposed,  as 
the  groups  embraced  larger  territorial  bounds,  an  increased 
burden  of  duty  on  the  militant  portion.  The  manorial  status 
is  an  outcome  of  war  and  conquest  on  the  one  hand,  and  of  a 
class  devoted,  at  first  by  compulsion  and  necessity,  and  later 
by  inheritance  and  habit,  to  the  tending  of  flocks  and  domestic 
duties.  The  common  fields  and  hearths  are  the  product  of  the 
latter  class ;  the  forms  of  administration  of  kings  and  kingly 
bodies,  with  national  parliaments  and  courts,  are  a  product  of 
the  militant  class  ;  though  to  the  maintenance  of  both,  in  the 
war  of  human  and  other  elements — that  is,  to  the  survival  of 
those  found  best  adapted — each  was  a  contributing  and  indis- 
pensable factor.  From  the  play  of  both  and  the  tendency  of 
social  aggregates  to  coalesce  and  produce  ramified  cooperative 
industrial  and  militant  factors,  it  would  result  that  the  agricul- 
tural class  and  their  holdings  would  become  developed  in 
certain  directions  and  qualified  in  others.  The  force  of  arms 
would,  as  its  power  became  greater,  reduce  to  an  iron  subjection 
the  purely  agricultural  class.  But  on  the  other  hand, 
from  among  its  votaries  would  come  those  elements  of  indus- 
trial growth  implied  in  barter  and  trade.  The  militant  con- 
dition contributed  to  the  production  of  landlordism  in  the 
hands  of  a  few.  The  earlier  industrial  conditions  maintained 
landholding  in  a  communal  and  quite  stationary  form.  The 
military  baron  and  the  industrial  burger  produced  the  city 
life  to  which  enlightened  humanity  owes  so  much ;  for  the 
early  mediaeval  city  is  the  product  of  an  ecclesiastical  founda- 
tion, with  its  military  bishop  and  assistants,  and  the  trades- 
men and  handicraftsmen  who  gathered  there,  or  of  some 
fortified  place  with  its  dependents  engaged  in  defense,  and 

1  Cf.  references,  note  7  supra. 


88       An  Introduction  to  the  Study  of  the  Constitution. 

those  who  fed  them  from  the  field  and  herds,  or  some 
developed  communal  form  of  agricultural  life,  such  as  the 
village  community  or  hof.  In  some  localities  the  city  is  a 
development  of  camp  life,  the  very  thoroughfares  showing 
signs  of  its  origin;  elsewhere,  the  walks,  and  the  different 
quarters  of  the  city,  show  it  to  have  been  a  fortified  place  of 
defense ;  again,  the  clustering  of  houses  around  some  cathe- 
dral shows  visibly  the  dependence  which  the  place  had  upon 
the  church ;  and  not  infrequently  the  long  single  important 
street  betrays  the  presence  of  that  village  life  still  to  be  seen 
among  the  communities  of  Europe.  And  if  we  look  to  the 
early  charters  or  liberties  of  cities,  we  shall  see  that  all  of 
them  owed  their  early  prominence  and  their  later  influence 
to  some  power  or  potentate  possessing  a  military  significance. 
Developing  city  life,  with  its  municipal  mayor  and  council 
and  polity,  and  the  effect  this  had  upon  the  splitting  up  of  com- 
munal forms  of  holding  into  individual  holdings  and  owner- 
ship, and  the  accumulation  of  large  holdings  into  the  hands 
of  individuals  through  kingly  grant,  tended  to  impair  the 
prevalent,  perhaps  the  only  early  form  of  ownership,  that  is, 
the  communal  or  joint  ownership  of  the  kin,  family  or  larger 
group.  The  later  enclosure  of  fields  produced  by  the  obvious 
disadvantages  resulting  from  a  communal  form  (whereby  indi- 
vidual incentive  was  counteracted,  and  agricultural  stagnation 
threatened  a  permanent  existence),  or  produced  by  lordly 
tyranny  and  force,  tended  in  time  to  enlarge  the  field  of  indi- 
vidual ownership  in  land.1  And  the  development  of  statehood, 
whereby  tribal  and  other  forms  melted  away  into  larger 
masses,  and  family  groups  tended  to  embrace  only  those  con- 
nected by  consanguinity,  likewise  tended  toward  individual 
ownership,  because  it  produced  a  larger  field  for  individual 
enterprise  and  thought. 

'See  Arnold,  Geschiehte  des  Eigenthums,  etc.;  also  Law  Q.  Rev.,  Vol. 
V.,  No.  1,  an  article  by  Mr.  Pike  on  livery  of  seisin  of  incorporeal 
hereditaments,  and  Scrutton,  Land  in  Fetters ;  same,  Commons  and 
Common  Fields. 


Evidences  of  Physical  and  Social  Factors.  89 

The  later  forms  of  ownership  owe  much  to  the  city  organi- 
zation. The  doctrine  of  rent,  as  an  incorporeal  heredita- 
ment, lying  in  grant,  is  probably  most  largely  an  outcome  of 
city  life;  prior  to  that  time  it  was  a  service  payable  in  kind, 
and  was  as  capable  of  seisin  as  land  was,  for  both  represented 
but  the  product  of  the  land  ;  the  product  was  alone  capable 
of  individual  ownership  or  control.1  The, very  notion  of  indi- 
vidual ownership  was  foreign  to  the  early  forms  of  thought 
respecting  lands.2  It  needed  some  form  of  social  aggregation 
such  as  city  life,  with  its  increasing  departure  from  the  pre- 
vious tribal  or  village  life,  with  its  aggregation  of  gilds  and 
industries  and  houses  and  streets,  and  the  political  forms  that 
grew  up  with  these,  such  as  a  mayor  or  council,  city  judges, 
a  mint  and  a  polity,  to  completely  destroy  the  notion  of  prop- 
erty which  is  peculiar  to  a  tribal  or  earlier  condition — a  notion 
of  property  which,  except  regarding  immediate  sustenance, 
wear  and  implements,  relates  to  movables  as  well  as  to  immov- 
ables, as  is  apparent  from  the  early  doctrine  of  succession.3 
When  barter  and  trade  have  grown  beyond  simple  exchange 
such  as  barbarians  practice,  movables  are  assured  a  wider 
influence  upon  human  development  than  before,  and  when 
the  construction  of  warehouses  and  residences  follows  in  the 
wake  of  trade,  landholding  must  cease  to  remain  communal. 

Yet  while  this  evolution  and  change  goes  on,  the  influence 
of  military  discipline  and  effects  will  be  observed  in  the  con- 
trol still  retained,  even  to  our  day,  over  great  aggregates  of 
property  in  cities  and  towns  by  the  nobility ;  also  by  that 
mode  of  succession  which  devolves  upon  a  single  successor 

1  Mr.  Ross,  in  his  Early  History  of  Landholding  among  the  Germans, 
takes  a  different  position,  but  he  is  not  sustained  by  the  great  mass  of 
inquirers. 

2  See  and  compare  Scrutton,  Land  in  Fetters,  and  Commons  and  Com- 
mon Fields;  Hanssen,  Agrarhistorische  Abhandl.,  Vol.  I.,  484  scq.,  Die 
mittelalterliche  Feldgemeinschaft  in  England  nach  Nasse,  etc. 

3  See  Maine's  Ancient  Law,  Chap.  VI. ;  Holmes'  Common  Law,  Lee.  X. ; 
Hearn,  Aryan  Household,  190  ;  Spencer,  Principles  of  Sociology,  Vol.  II., 
§536  seq.;  Fustel  de  Coulanges,  Ancient  City,  Book  II.,  Chap.  VII. 


90       An  Introduction  to  the  Study  of  the  Constitution. 

the  landed  possessions  of  the  ancestor,  implied  in  primogeni- 
ture1— two  consequences  which  the  new  settlement  of  lands  in 
America  tended  to  check  and  in  a  large  measure  eradicate. 
Such  discipline  and  effects  are  observable  in  the  doctrine  that 
to  the  crown,  or  king  or  sovereignty,  belonged  originally  all 
lands — a  premise  not  true  except  where  conquest  had  eradi- 
cated all  prior  possessions  or  rights,  yet  a  necessity  of  thought, 
because  to  no  one  else  could  be  attributed,  especially  in  a 
large  and  growing  social  aggregate,  the  ownership  of  unoccu- 
pied or  forfeited  lands.  It  is  noteworthy,  too,  that  as  aggrega- 
tions became  larger  and  more  heterogeneous  in  composition 
and  more  ramified  in  pursuits,  militant  discipline  became 
broader  in  outline  and  more  rigorous  and  unelastic ;  likewise 
the  serfdom  became  more  severe  and  galling,  until  industrial 
agencies  tended  to  introduce  a  more  correct  notion  of  man's 
general  capacities,  and  the  church  and  philosophy  secured  a 
better  appreciation  of  man's  general  worth.  Industry  in  a 
measure  tended  later  on  to  reverse  the  good  effects  thus 
secured,  by  introducing  a  refined  form  of  slavery  such  as  is 
exhibited  in  the  history  of  the  United  States  and  the  West 
Indies ;  of  which  some  evidences  can  also  be  found  in  Roman 
history. 

Some  countries,  because  of  the  peculiar  physical  surround- 
ings to  be  found  there,  disclose  a  somewhat  different  course  of 
development  than  that  above  indicated.  Such  is  the  case 
among  the  cantons  of  Switzerland  and  of  the  republic  of  San 
Marino.  It  is  likewise  the  case  in  the  United  States.  In 
the  production  of  this  exceptional  development,  the  moun- 
tains of  Switzerland  (the  Alps)  have  had  large  influence;  and 
as  to  the  United  States,  a  broad  ocean  and  a  development 
free  from  restraints  of  baronial  and  kingly  rule  have  had 
great  weight.  Mention  has  already  been  made  of  the  influ- 
ence of  the  physical  factors  referred  to  upon  laws,  and  they 

1  See,  on  the  abolition  of  primogeniture  in  ancient  Greece,  Ancient  City, 
Book  IV.,  Chap.  V. 
2 See  Zrodolowski,  Romisches  Privat-Recht,  §§25-28. 


Evidences  of  Physical  and  Social  Factors.  91 

need  not  be  further  treated  in  this  connection ;  but  it  will 
not  be  amiss  to  observe  some  phases  of  development  in 
Switzerland  in  the  matter  of  landholding,  due  to  the  physical 
surroundings. 

Miaskowski,  whose  researches  into  Swiss  landholding  are 
accepted  as  authority,1  traces  up  its  history  from  the  estab- 
lishment of  those  early  village  forms  of  communal  holding 
which  are  to  be  found  all  over  Europe  in  early  days.    In  the 
Middle  Age  extensive  lordly  holdings  with  serfs  existed,  and 
to  this  became  added  the  holdings  of?  churches  and  monas- 
teries, which  came  to  cover  the  land  like  a  web.     A  few 
holdings  confined  to  a  single  family  are  to  be  found,  but 
these  seem  by  ultimate  occupation  by  a  larger  group  to  have 
developed  or  evolved  into  village  holdings — a  development 
the  opposite  to  what  is  to  be  seen  elsewhere  in  Europe  during 
the  same  period,  because  the  power  of  the  barons  elsewhere  in 
Europe  increased  at  the  expense  of  the  peasantry,  while  it 
became  broken  in  Switzerland.     The  development  of  com- 
munal holdings  otherwise  developed  here  as  elsewhere  in 
Europe,  until  the  agrarian  form  of  association  became  super- 
seded by  the  requirements  of  a  freer  industrial   activity, 
though  some  peculiarities  in  this  development  may  be  noted. 
In  virtue  of  the  splitting  up  of  the  holdings  of  the  members 
of  a  given  community  through  inheritance  and  otherwise,  it 
came  to  pass  that  a  great  variety  of  large,  small  and  still 
smaller  possessors  disputed  with  one  another  for  the  enjoy- 
ment of  communal  privileges,  of  constructing  homes  on  their 
portion  of  the  village  devoted  to  the  erection  of  homesteads, 
and  of  enjoying  the  right  of  pasture  and  wood  upon  the 
commons  and  in  the  woods  of  the  community.     The  right 
of  being  heard  in  the  determination  of  the  policy  which 
should  control  the  community  was  likewise  asserted  by  these, 
and  their  obligations  regarding  duties  and  taxation  to  main- 

1  See  Hanssen,  Agrarhistorische  Abhandlungen,  Vol.  I.,  513  seq.  See 
for  evidences  of  development  of  landholding  in  New  England,  in  addition 
to  authorities  already  cited,  Weeden,  Economic  and  Social  Hist,  of  New 
England,  Vol.  I.,  Chaps.  III.  and  VIII. 


92       An  Introduction  to  the  Study  of  the  Constitution. 

tain  the  community  were  the  source  of  considerable  dispute. 
The  right  of  homestead  gave  rise  to  great  controversy,  which 
has  continued  on  to  the  present  day,  giving  rise  in  turn  to 
many  different  regulations  aimed  to  prevent  a  disturbance  of 
previous  holdings,  and  especially  the  confusion  resulting  from 
too  much  division  of  a  share  or  right  of  enjoyment  allotted  to 
the  separate  members  of  the  community.  The  impractica- 
bility of  maintaining  the  village  integrity  led  to  an  appropria- 
tion of  the  common  pastures  and  woods  among  individuals, 
and  to  individual  forms  of  competition  in  industry  that  mili- 
tated strongly  against  the  village  customs  and  conservative 
forms  and  notions.  Enclosures  of  given  parts  became  in 
this  way  more  numerous.  To  what  extent  these  enclosures 
produced  regulation  cannot  be  told,  but  they  were  at  first 
permitted  under  certain  conditions  and  for  certain  periods 
only,  and  the  products  which  might  be  cultivated  were  not 
infrequently  prescribed,  for  the  protection  of  others  who 
adhered  (were  bound  by  custom  and  disposed  by  long-con- 
tinued practice  to  adhere)  to  the  communal  forms  and  pro- 
ducts of  agriculture.  Notwithstanding,  the  cultivation  of 
cereals  gave  gradual  place  to  the  raising  of  cattle,  and  the 
export  of  cheese  became  the  principal  industry.  And  now  a 
danger  threatens — the  dependence  of  Switzerland  upon  the 
outside  world  for  the  most  of  her  requirements  has  been  ren- 
dered much  too  great,  in  the  interest  of  cheese  manufacture, 
which  of  late  years  has  not  proved  profitable.  The  capacity 
of  self-maintenance,  peculiar  to  Switzerland  in  earlier  days, 
has  largely  ceased  to  exist — too  much  so,  indeed.  The  growth 
of  cattle-raising  has  largely,  driven  by  the  impossibility  of 
extending  it  where  it  came  into  contact  with  the  agricultural 
village  communities  referred  to,  led  to  the  occupation  and 
enrichment  by  toil  and  effort  of  the  higher  and  more  sterile 
lands  of  the  Alps.  These  and  the  custom  of  sending  the 
cattle  to  graze  in  the  higher  regions  in  the  hot  months  have 
led  to  many  regulations  peculiar  to  the  occupation  of  higher 
mountainous  districts.  Regulations  prohibiting  the  pledge  or 
transfer  of  any  part  of  these  regions  to  outsiders  ;  regulations 


Evidences  of  Physical  and  Social  Factois.  93 

providing  that  only  the  cattle  fed  in  winter  from  the  hay  of  the 
valleys  might  graze  in  certain  mountainous  pasturages;  that 
the  surface  required  to  feed  one  cow  should  constitute  a  unit  of 
landholding  for  purposes  of  taxation;  that  the  use  of  the 
pasturages  should  be  under  prescribed  limitations  as  to  time 
and  quantity,  in  view  of  the  danger  of  irreparable  waste; 
regulations  relative  to  the  maintenance  of  forests  and  moun- 
tain roads,  etc.,  exist.  These  regulations  are  modified  when 
they  come  into  contact  with  the  needs  of  the  cities  of  Switzer- 
land, and  many  cantons  have  local  regulations  occasioned  by 
special  necessities  of  their  situation.  The  strife  of  a  com- 
munal life  with  adverse  physical  elements  and  the  spread  of 
industrial  activity  have  superinduced  long-continued  and 
bitter  controversies,  and  the  end  is  not  yet.  But  the  com- 
parative area  of  the  nation  is  so  limited  that  the  conservative 
elements  peculiar  to  an  agrarian  people  maintain  a  status  quo 
which  cannot  be  found  elsewhere  among  the  enlightened 
nations  of  Europe,  and  government  is  largely  a  matter  of 
local  and  personal  concern. 

In  the  low  country,  in  the  north  of  Europe,  the  liability  of 
the  people  to  overflows  gave  rise  to  peculiar  agricultural  cus- 
toms and  to  forms  of  landholding  that  have  not  an  exact 
counterpart  elsewhere.1  So  on  the  banks  of  the  Nile  early 
communal  customs  were  affected  by  its  periodical  overflows.2 
On  the  shores  of  Newfoundland  may  be  found  at  this  day  a 
people  whose  life  and  regulations  are  merged  in  and  colored 
by  the  single  pursuit  of  fishery,  among  whom  the  native  cur- 
rency is  some  form  or  product  of  the  fish.  The  changes  in 
the  land  system  of  England  have  been  partly  indicated  by 
Mr.  Thorold  Rogers3  and  Mr.  Scrutton.4     In  the  first  half  of 

1  Hanssen,   Agrarhistorische  Abhandlungen,  Vol.  II.,  330.     See   also. 
Elton,  Origins  of  English  History,  51. 

2Leist,  Graeco-Ital.  R.  G.,  106, 107  ;  Kuhn,  Rom.  Stadt-Verf.,  Vol.  II., 
472  seg.     The  like  might  be  said  of  the  effect  of  the  Euphrates  and  Tigris. 

3  Work  and  Wages. 

4Land  in  Fetters,  Chap.  VII.;  also,  and  more  fully,  Commons  and 
Common  Fields,  Chap.  IV.  seq. 


94       An  Introduction  to  the  Study  of  the  Constitution. 

the  14th  century  the  method  of  cultivation  in  England  was,  on 
the  domain  land  of  the  manor,  by  laborers  employed  by  the  lord 
or  his  bailing  who  were  paid  out  of  the  money  commutations 
which  had  taken  the  place  of  the  personal  services  due  from 
the  copyhold  tenants.  There  were  two  classes  of  landholders, 
landlords  and  laborers.  "The  copyhold  tenants  had  their 
homestead  and  stock  from  their  lord,  and  were  bound  in 
return  to  perform  personal  service  in  tilling  his  domain  land, 
a  service  which  by  this  time  had  usually  been  commuted  into 
fixed  money  payments,  with  which  he  had  hired  laborers  to 
cultivate  his  domain."  Alienation  of  land  usually  took  place 
by  the  hands  of  the  lord.  The  plague  of  1348,  '49  and  '61, 
in  which  nearly  half  the  population  are  estimated  to  have 
perished,  changed  matters.  It  produced  a  scarcity  of  help 
and  a  rise  in  wages.  The  landlords  undertook  to  meet  this 
by  statutes  prescribing  the  limit  of  wages,  and  by  enforcing 
performance  of  personal  service  again.  The  discontent  thus 
produced  gave  rise  to  the  peasants' revolt  of  1381.  The  out- 
come was  that  lands  were  let  out  on  leases,  and  not  infre- 
quently it  led  to  sales  of  small  holdings.  This  brought  to 
notice  the  restraints  on  alienation  which  existed,  produced  by 
the  ingenuity  of  casuistical  lawyers.  The  Wars  of  the  Roses 
killed  out  the  barons  and  gave  room  for  some  land  acquisition 
upon  the  part  of  the  commercial  class.  This  tendency  led  to 
a  commercial  regimen  in  the  cultivation  and  alienation  of 
lands.  It  was  seen  that  lands  for  pasturage  were  most  profit- 
able, and  acquisition  and  enclosure  of  large  tracts  for  this 
purpose  occurred  to  such  an  extent  as  to  call  the  attention  of 
the  country  to  the  danger  which  threatened  the  small  farmers 
and  yeomanry,  who  were  thus  becoming  deprived  of  their 
livings.1  An  act  was  passed  to  meet  this,  in  addition  to  other 
acts  in  favor  of  alienation,  which  provided  "that  no  house 
to  which  20  acres  of  land  was  attached  should  be  destroyed." 
In  another  act  it  was  provided  "that a  suitable  dwelling-house 

'See  this  danger  shown  by  Scrutton,  Commons  and  Common  Fields, 
Chap.  IV.  seq. 


Evidences  of  Physical  and  Social  Factors.  95 

should  be  maintained  for  every  40  acres  of  land."  And 
there  were  other  acts  against  excessive  sheep-farming  and 
enclosures.  "  The  cultivation  of  England  by  lord  and  peasant 
gave  way  to  a  system  of  culture  by  lord,  farmer  and  laborer ; 
commercial  reasons  led  to  large  farms,  and  the  desire  of  new 
landowners  to  found  a  family  prompted  the  accumulation  in 
one  hand,  and  the  invention  of  devices  to  keep  on  the  land 
the  grasp  of  that  hand,  though  dead." 

Those  writers  who  have  studied  the  subject  well  have  not 
hesitated  to  affirm  that  the  growth  of  cities  has  contributed 
to  produce  our  nationalities.2  This  is  not,  however,  the 
place  in  which  to  pursue  that  inquiry  further;  it  will  pre- 
sent itself  for  examination  further  on.  What,  however,  is  of 
importance  to  note  is  that  the  customs  of  trade,  those  cus- 
toms which  have  developed  the  use  and  importance  of  mov- 
able and  immovable  objects,  and  have  expanded  both  by  the 
artifice  of  a  representative  of  value,  have  their  most  prominent 
impetus  in  cities.3  There,  as  already  seen,  we  look  for  a 
development  of  the  custom  of  receiving  or  exacting  interest, 
not  in  the  shape  of  a  duty  or  charge  resting  upon  the  pos- 
sessor of  the  soil,  but  in  the  shape  of  a  quid  pro  quo,  a  con- 
sideration for  use.4  And  there  rent,  as  it  is  now  used  and 
as  it  is  understood  by  English-speaking  people,  found  its 
first  home.5  The  early  services  were  those  of  subjects  or 
dependents,  not  such  as  were  the  result  of  bargain  or  trade.6 

1  The  above  summary  is  taken  from  Scrutton,  Land  in  Fetters,  Chap. 
VII. 

2  Arnold,  Verfassungsgeschichte  der  deutschen  Freistadte,  Vorrede ; 
Arnold,  Geschichte  des  Eigenthums  in  den  deutschen  Stadten,  passim  ; 
Waitz,  D.  V.  G.,  Vol.  VII.,  418,  419  ;  Freeman,  English  Towns  and  Dis- 
tricts, Preface;  Stubbs,  Constitutional  History  of  England,  Vol.  I.,  403 
seq.;  Schwebel,  Peutsches  Biirgerthum,  passim. 

3  See  Schwebel,  Deutsches  Biirgerthum,  passim  ;  Arnold,  Eigenthum 
in  D.  S. 

"See  Arnold,  Eigenthum,  etc.,  45,  and  Chaps.  III.  and  V. 

5  See  Arnold,  loc.  cit. 

6  See  Seebohm,  English  Village  Community,  Index,  Services  of  Villani ; 
Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Chap.  XVI.;  Ross, 
Early  History  of  Landholding  among  the  Germans,  126,  146  ;  Roescher, 


96       An  Introduction  to  the  Study  of  the  Constitution. 

Remembering  that  the  use  of  money  is  comparatively  late, . 
and  that  while  barter  of  articles  is  the  only  known  mode 
of  exchange  there  is  no  probability  of  the  idea  of  rent  as  now 
understood,  much  less  of  interest,  we  see  at  once  how  true  the 
position  taken  must  be.  It  needs  a  growth  of  custom  and 
habit  such  as  city  life  and  traffic  produced  to  segregate  from 
things  the  idea  of  absolute  or  qualified  ownership.  I  cannot 
agree  with  those  who  claim  that  possession  is  an  extension  of 
the  notion  of  ownership.1  The  probabilities  are  that  posses- 
sion was  the  fact  upon  which  the  earliest  groups  based  their 
views  of  ownership.  We  see  this  not  only  in  the  views 
already  indicated,  but  also  in  their  views  of  tradition  and 
early  remedies,2  and  their  inability  to  abstract,  hence  to  sep- 
arate in  idea,  the  notion  of  possession  from  that  of  ownership. 
But  it  is  doubtless  true  that  the  extension  of  experience  and 
modes  of  user  and  enjoyment  of  property  have  not  only  led 
to  individual  ownership,  but  the  extension  of  ownership  by  its 
segregation  from  actual  possession.  This  is  how  seisin 
became  different  from  possession;  how  use  and  ownership 
became  separable ;  how  incorporeal  hereditaments  came  to  lie 
in  grant.3  The  process  of  development  of  language  from 
things  the  senses  perceive  to  abstract  notions  is  thus  revealed 
in  the  domain  of  law.     It  will  be  seen,  as  one  should  easily 

Political  Economy,  Book  III.,  Chaps.  II.  and  III.;  see  Arnold,  supra, 
207;  Roescher,  Political  Economy,  Vol.  I.,  Book  II.,  Chap.  III.  See 
also  Garlanda,  Philosophy  of  Words,  136,  137  ;  Taylor,  Words  and 
Places,  297  seq. 

'Holmes,  Common  Law,  Lecture  VI.,  and  authorities  therein  cited; 
Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Chap.  XV.;  Maine, 
Ancient  Law,  Chap.  VIII.;  Laveleye,  Primitive  Property,  Chap.  XVII.; 
Essays  in  Anglo-Saxon  Law,  55;  3  L.  Q.  Rev.,  32  seq.;  Ihering,  Der 
Grund  des  Besitzes-Schutzes ;  same,  Besitzwille.  But  see  Ross,  Early 
History  of  Landholding  among  the  Germans,  Notes  143,  144,  who  is 
opposed  in  his  views  by  the  great  weight  of  authority.  See  also  Hanssen, 
Agrarhistorische  Abhandlungen,  Vol.  II.,  84  seq.;  Landau,  Die  Terri- 
torien,  passim  ;  Seebohm,  The  English  Village  Community,  passim. 

2  See  section  on  Procedure,  post. 

3  See  as  to  this,  Law  Quarterly  Review,  Vol.  V.,  On  Livery  of  Seisin  of 
Incorporeal  Hereditaments.     See  Ihering,  Besitzwille. 


Evidences  of  Physical  and  Social  Factors.  97 

anticipate,  in  every  domain  of  law.  There  is  no  branch  that 
has  not  grown  from  early  conditions  unless  it  be  of  recent 
creation,  and  the  way  the  different  topics  are  made  up  in  our 
arrangement  of  legal  heads  betrays  the  legal  patchwork  which 
we  call  precedent.  As  each  subject  is  explored  we  have  it 
revealed  to  us  that  the  law  of  the  courts  and  the  bar  is 
largely  the  expression  of  what  the  bench  and  bar  have  said, 
as  occasion  called  for  expression,  regarding  mooted  points 
bearing  upon  the  relations  of  beings  to  one  another  and  to 
objects  around  and  about  them.1  It  does  not  pretend  to  be 
a  logical  invention  based  on  syllogisms,  nor  a  philosophical, 
nor  even  scientific  subject  treated  in  a  thoroughly  systematic 
way,  worked  out  in  all  details. 

Property  nowadays  embraces  not  only  land  and  movable 
objects,  but  it  also  embraces  choses  in  action  and  the  use  or 
enjoyment  of  privileges  or  rights  in  or  over  land  and  objects. 
The  idea  or  notion  itself  has  expanded  as  society  has  developed 
new  features  in  this  regard.  Commercial  paper  has  expanded 
to  embrace  notes,  checks,  bills  of  exchange,  negotiable  bonds 
of  manifold  kinds,  debentures,  rentes,  bank  notes,  the  national 
currency,  and  book  accounts.  All  of  these  have  in  view  the 
delivery,  sooner  or  later,  of  objects  of  tangible  value,  sensuous 
objects  that  have  some  more  real  value  than  mere  slips  of 
paper  possess.  These  are  representatives  of  value,  or  conve- 
nient means  of  exchange.  Their  origin  is  not  clear,  but  that 
they  are  the  outcome  of  the  extension  of  barter  is  undoubted. 
At  their  base  lies  a  causa  or  consideration,  or  material  exist- 
ence, not  a  mere  figment  of  the  mind.  The  servitudes  that 
rest  upon  land  in  diverse  forms  are  the  creatures  of  user  or 
imply  user.  The  doctrine  of  hypothecation  involves  the 
notion  of  pledging,  and  still  retains,  even  in  the  shape  of 
mortgages,  the  notion  that  possession  goes  with  it  unless  the 

'See  Hanssen,  Agrar.  Hist.  Abhd.,  Vol.  I.,  112,  where  he  says, 
respecting  land  development  in  the  district  of  Trier,  that  it  justifies  the 
position  regarding  private  landownership  all  over  Germany  and  Scan- 
dinavia, that  it  resulted  from  the  rarer  and  rarer  use  and  eventual  aban- 
donment of  the  practice  of  early  forms  of  division  and  distribution. 


98       An  Introduction  to  the  Study  of  the  Constitution. 

contrary  be  stipulated.  In  Germany,  mortgages  of  land  are 
representatives  of  part  of  the  property,  and  when  recorded 
are  transferable  as  such.  Franchises,  such  as  rights  of 
ferriage,  markets,  private  corporate  functions  and  privileges, 
have  in  view  material,  objective  gains,  not  mental  develop- 
ment, except  where  corporations  are  organized  for  literary, 
moral,  aesthetic,  religious  or  benevolent  purposes. 

The  growth  spoken  of  could  not  fail  to  leave  its  impress 
upon  law.  The  feudal  customs  relating  to  the  alienation  of 
property,  the  tenures  by  which  they  have  been  held,  some  rem- 
nants of  which  still  color  the  law  of  real  property,  the  differ- 
ent phases  of  developing  ownership  implied  in  uses,  trusts, 
servitudes  and  bailment,  and  other  incidents  markedly  show 
this.  The  doctrine  of  warranty  is  a  derivation  from  it,  the 
outcome  of  those  early  practices  of  putting  forward  the  per- 
son who  had  made  tradition,  usually  some  person  of  larger 
powers  than  those  who  vouched  to  warranty.  The  modes  of 
transfer  were  at  first  visible  modes  of  tradition,  correspond- 
ing with  that  appreciation  for  matters  which  the  senses  solely 
took  note  of  in  earlier  days.  The  bringing  a  person  to 
the  place  and  putting  him  upon  it,  the  handing  over  of  some 
part  or  emblem  of  the  premises,  the  delivery  of  property,  the 
making  and  delivery  of  deeds,  all  imply  tradition  or  a  hand- 
ing over  of  some  representative  object.  A  gift  is  not  com- 
plete without  delivery  or  its  equivalent.1  A  sale  implies 
delivery.2  Property  descends  and  is  divided,  though  in  an 
intangible  form.    The  doctrine  of  descent  is  a  slow  develop- 

1  "Wharton  on  Contracts,  Vol.  I.,  §496  ;  Chitty  on  Contracts  (11th  Am. 
ed.),  Vol.  I.,  60;  Flanders  v.  Blandy,  12  Northeastern  Reporter,  321; 
Peters  v.  Construction  Co.,  34  Northwestern  Reporter,  190. 

2  Mr.  Benjamin  says  that  there  must  be  a  concurrence  of  the  following 
elements  to  constitute  a  sale:  1st.  Parties  competent  to  contract;  2d. 
Mutual  assent;  3d.  A  thine/,  the  absolute  or  general  property  in  which  is 
transferred  to  the  buyer  ;  4th.  A  price  in  money  made  or  promised. 
Mental  and  physical  elements  are  here  intimately  blended.  In  early  days 
tradition  was  not  distinguished  and  abstracted  from  the  mental  attitude 
of  the  parties  ;  that  happened  only  when  courts  and  lawyers,  in  obedience 
to  later  experience,  created  the  abstraction. 


Evidences  of  Physical  and  Social  Factors.  99 

ment  of  tribal  into  later  forms  of  landholding,  bearing  many 
traces  of  the  clay  when  the  property  was  still  looked  upon  as 
a  corpus  belonging  to  the  family  group.1 

The  development  of  leasing  or  renting  has  called  into 
existence  new  relations  with  physical  objects,  such  as  fire  and 
other  forms  of  waste  or  destruction,  and  doctrines  relative 
thereto ;  also  doctrines  relative  to  the  objectionable  or  per- 
missible uses  to  which  property  may  be  put.  The  doctrines 
of  nuisance  largely  grow  out  of  abuses  to  property  following 
in  the  wake  of  developing  societies  or  aggregations.  Pledges, 
which  were  perhaps  among  the  earliest  forms  of  tradition  of 
movable  objects,  and  which  were,  as  we  shall  see,  a  natural 
outcome  of  the  disposition  to  seek  relief  and  security  against 
wrong,  implied  the  actual  transfer  of  the  object  and  the  con- 
tinued retention  thereof.  And  in  our  day  possession  is  essential 
to  a  pledge.  The  mechanic's  lien  upon  personal  property  like- 
wise implies  possession.  It  was  on  account  of  actual  possession 
or  dominion  forming  the  basis  of  recognition  that  the  early 
people  of  western  Europe  recognized  only  the  right  of  the  bailee 
to  proceed  against  the  wrongdoer  for  a  loss  sustained  while 
in  the  bailee's  custody.2     The  growth  of  cities  and  towns  has 

1  Holmes,  Common  Law,  Lee.  X.;  Maine,  Early  Hist,  of  Inst.,  Lee.  VII. , 
188  seq. ;  Hearn,  Aryan  Household,  Chap.  VI.  An  evidence  of  this  fact 
is  to  be  found  in  what  has  been  called  the  custom  of  borough-English, 
whereby  the  youngest  son  obtained  the  homestead ;  which  was  widespread 
in  earlier  days,  and  is  the  product  of  the  custom  of  those  who  were  attached 
to  the  soil  and  cultivated  it,  whereby  the  last  or  youngest  of  the  sons 
received  the  hearth  and  the  home  and  its  attendant  privileges.  See 
Hearn,  Aryan  Household,  82,  83;  Maine,  Early  Hist,  of  Institutions, 
223,  224;  Scrutton,  Land  in  Fetters,  10,  62  ;  Glanville,  VII.,  3  ;  Elton, 
Origins  of  Eng.  Hist.,  Chap.  VIII.  Mr.  Elton  shows  the  wide  prevalence 
of  the  custom  and  attributes  it  to  early  religious  practices.  Its  advent 
where  noticed  is  more  or  less  overshadowed  by  the  right  of  primogeniture. 
See  Elton,  also  Ross,  Early  History  of  Landholding  among  the  Germans, 
104,  and  note  226.  My  explanation  of  this  would  be  that  the  class 
who  were  cultivators  retained  the  custom  of  so-called  junior  right,  while 
the  warrior  class  favored  primogeniture.  See  further  upon  this  subject, 
infra,  Section  II. 

2  Holmes,  Common  Law,  166;  Scrutton,  Roman  Law  and  the  Law  of 
England,  188  ;  Essays  in  Anglo-Saxon  Law,  202,  203,  204. 


100     An  Introduction  to  the  Study  of  the  Constitution. 

produced  such  results  as  dedication  of  streets  and  ways  by 
estoppel,  enjoyment  of  proper  light,  pure  air  and  reasonable 
quiet,  likewise  the  varying  uses  to  which  single,  large  build- 
ings are  put  by  different  tenants,  whereby  relative  duties  are 
entailed  on  tenants  toward  each  other  and  with  landlords. 
In  consequence  of  modern  city  growth,  doctrines  relating  to 
party  walls  have  found  a  necessary  existence,  even  contrary  to 
the  wishes  of  the  landowner.  The  character  of  buildings  and 
the  dangers  ensuing  from  improper  construction  and  deleteri- 
ous maintenance  in  municipalities  have  given  rise  to  a  mass 
of  regulations  and  new  features  in  the  criminal  code. 

Enough  has  been  said  upon  this  subject  to  show  how 
physical  and  social  agencies  play  a  part  in  the  law  relating 
to  property.  Much  more  could  be  said,  as  the  reader  can 
easily  surmise.1  The  physical  objects  of  ownership  form  the 
very  basis  of  that  branch  of  the  law  and  the  indispensable 
factor  to  the  development  of  all  other  branches.  The  growth 
of  social  aggregates  has  depended  upon  these, — upon  their 
existence,  and  the  means  of  sustenance  and  the  traffic  they 
afforded.  Each  stage  of  growth  has  varied  and  multiplied 
the  forms  of  use  of  these  objects  and  added  to  their  number. 
Social  aggregation  has  acted  back  upon  them,  giving  rise  to 
new  possibilities  in  their  use.  And  whatever  of  invention 
there  may  have  been  involved,  the  basis  and  the  prime  element 
of  it  all  was  the  physical  object  acted  upon  by  men,  adapted 
in  use  to  the  physical  environment  by  which  man  was  sur- 
rounded, which  formed  a  necessary  factor  in  his  calculation. 
We  cannot  say  of  these  objects  and  the  law  wfyich  their  vary- 
ing uses  produced,  that  these  were  to  mankind  as  the  canvas 
is  to  the  artist.  The  canvas  is  a  comparatively  insignificant 
element  in  the  construction  of  the  work.  Not  so,  however, 
these  objects  ;  they  more  frequently  than  otherwise  oblige 
man  to. adapt  himself  to  them  and  the  surroundings  that 
environ  both. 

The  need  of  bearing  in  mind  the  importance  of  physical 

1  See  this  Chapter,  Section  3. 


Evidences  of  Physical  and  Social  Factors.  101 

and  social  factors  in  the  growth  of  the  law  of  property  is 
exemplified  in  the  disposition  to  view  property  as  an  evil 
invention,  and  in  the  agitation,  more  or  less  revolutionary  or 
anarchical,  to  overthrow  it.  The  overthrow  of  property  is  an 
impracticable  end.  It  is  a  notion  that  forms  part  of  civilized 
existence;  so  bound  up  in  its  growth  and  development  as  to 
be  inexpungible  therefrom.  The  notion  itself,  not  only  in 
Rome,  but  in  modern  nations,  is  not  synonymous  with 
untrammeled  control ;  for  the  exercise  of  the  privilege  of  emi- 
nent domain,  taxation,  police  control  in  its  different  forms, 
and  the  relative  duties  which  owners  owe  to  each  other  and 
the  public,  assume  the  existence  of  a  large  deduction  there- 
from. Property,  like  possession,  is  a  relative  term,  and  it 
expands  with  the  increments  of  experience  bearing  upon  the 
use  and  abuse  of  earthly  possessions.  The  theories  of  those 
who  would  annihilate  property  are  not  based  on  any  proper 
conception  of  the  growth  of  jural  notions  ;  and  the  ideas  of 
those  who  think  that  the  declaration  of  jural  notions  by 
courts  or  writers  can  stay  for  good  the  drift  of  developing  or 
changing  communities  is,  likewise,  gratuitous  and  unfounded. 
And  when  the  protection  of  property  more  and  more 
becomes  the  desideratum  of  constitutional  law,  as  reflected  in 
the  pages  of  Magna  Charta,  Bills  of  Rights,  and  our  constitu- 
tional provisions,  in  one  form  or  another,  in  numerous  con- 
nections and  ways,  we  observe  the  movement  meagerly  indi- 
cated which  in  more  detail  is  illustrated  by  the  pages  of  this 
chapter.  We  shall  see  the  influence  of  property  in  the  forma- 
tion of  constitutional  law  in  the  earliest  demos,  when  we  come 
to  discuss  constitutional  law.1 


SECTION  II. — THE    LAW    CONCERNING   DOMESTIC    RELATIONS. 

In  the  recent  work  of  Geddes  and  Thomson,  on  the  Evolu- 
tion   of  Sex,  the   position   is    advanced  and  supported  by 

1  See  the  last  two  chapters  of  this  work. 


102     An  Introduction  to  the  Study  of  the  Constitution. 

references  to  the  works  of  those  scientific  inquirers  who  have 
devoted  themselves  to  this  special  branch,  that  intercourse 
between  male  and  female  is  a  matter  of  gradual  evolution, 
occasioned  as  the  growth  of  anatomical  and  physiological 
characteristics  induced  change  of  life.  Intercourse  in  one 
form  or  another  is  shown  by  them  to  be  a  fundamental 
characteristic  of  all  human  beings,  lying  deep  in  the  frame- 
work of  organic  life.  And  one  of  the  incidents  thus  disclosed 
is  the  essential  difference  in  constitution  which  eventually  dis- 
tinguished the  male  from  the  female,  a  difference  whose  physical 
results  affected  the  emotional  as  well  as  the  intellectual  life 
of  both.  We  may  be  sure  that  from  the  very  first  intercourse 
was  a  physical  phenomenon  which  human  beings  practised. 

The  tendency  occasioned  by  this  characteristic  to  induce 
aggregation  in  lesser  groups  is  found  among  many  animals, 
and  has  always  been  found  among  mankind.  The  gregarious 
habit  which  distinguishes  the  bovine,  the  equine  and  the 
wolf  likewise  makes  itself  manifest  in  the  very  earliest  stage 
among  mankind.1 

There  are  then  two  physical  characteristics  invariably  dis- 
tinguishing mankind  in  its  earliest  stages — intercourse  and 
aggregation.  Incidental  to  these  are  those  universal  impulses 
which  seek  satisfaction  in  allaying  hunger  and  carnal  desires. 
Thus  we  have  brought  before  us  elements  which  are  found 
in  animal  life  below  the  stage  of  the  human  being,  and  which, 
without  a  single  normal  exception,  impelled  mankind  from 
its  earliest  stages. 

No  satisfactory  account  of  the  origin  of  the  human  being 
has  yet  been  given,  but  all  the  evidence  points  to  his  evolu- 
tion from  a  non-human  condition.  However  this  may  be, 
when  mankind  is  seen  in  its  earliest  stages,  forms  of  aggrega- 
tion exist,  also  customs  of  various  kinds,  customs  at  first 
purely  barbarous. 

The  familia,  the  family,  is  an  organization,  if  such  it  can 
be  called,  which  finds  an  existence  only  when  more  families 

1  Geddes  and  Thomson,  Evolution  of  Sex. 


Evidences  of  Physical  and  Social  Factors.  103 

than  one  in  a  collective  group  are  noticeable.1  The  worship 
of  the  manes  of  a  family  group  is  a  copy  of  the  worship  of  a 
tribal  chief.  The  two  may  have  come  up  in  a  like  way,  or  the 
one  may  have  reacted  upon  the  other.  But,  however  this  may 
be,  we  may  rest  assured  that  in  the  worship  of  manes,  penates, 
the  ghosts  of  dead  chiefs  or  heads  of  families,  the  family 
group  obtained  that  adherence  to  a  hearth  which  aids  to  create 
a  household  in  our  modern  sense. 

Mr.  Elton  says  that  the  early  inhabitants  of  the  Grampians, 
who  antedated  the  Celt,  "  lived  naked  and  barefooted,  in  a 
savage  communism,  without  any  organization  of  state  or 
family."2  And  this  is  likewise  predicable  of  other  savages.3 
The  word  "  family,"  another  writer  says,  is  not  known  to 
early  tribes ;  their  first  form  of  social  grouping  was  the  "  house- 
hold," meaning  thereby  "an  organized  permanent  body,  dis- 
tinct from  its  individual  members,  owning  property  and 
having  other  rights  and  duties  of  its  own.  .  .  .  Over  it  the 
house-father  presided  with  absolute  power,  not  as  owner  in  his 
own  right,  but  as  the  officer  and  representative  of  the  corpor- 
ation. .  .  .  The  tie  between  the  members  was  neither  blood 
nor  contract,  but  community  of  domestic  worship.  ...  It 
included  servants  and  dependents.  It  included  children  by 
adoption.  ...  Its  one  great  aim  was  the  perpetuation  of  the 
sacra  ."4 

^chrader.Sprachvergleichungu.  Urgeschichte,  568 ;  FriedrichEngels, 
Ursprung  der  Familie,  Chap.  II.  aud  page  65.  The  probabilities 
seem  to  be  that  the  worship  of  gods  originated  only  after  the  necessity 
of  chieftainship  produced  fear  of  a  ruler,  and  worship  of  his  shade  after 
death.  But  see  contra  Fustel  de  Coulanges,  Ancient  City  ;  Hearn,  Aryan 
Household.  Cf.  Leist,  Graeco-Ital.  Rechtsg.,  Books  I.  and  II.,  especially 
page  96;  Platner,  Beitrage,  etc.  ;  Schrader,  Sprachv.  u.  Urg.,  Chapter 
on  Familie  u.  Staat. 

2 Origins  of  Frig.  Hist.,  170. 

3 McLennan,  Studies  in  Ancient  History,  430  seq.  ;  Transactions  Ethn. 
Soc,  N.  S.,  V.,  45  ;  Encyclopaedia  Britannica,  "  Family." 

4  Hearn,  Aryan  Household,  Chap.  III.,  gl.  To  the  same  effect  is  Fustel 
de  Coulanges,  Ancient  City,  Book  II.,  who  attributes  to  it  the  early  con- 
stitution of  the  law  of  succession,  primogeniture,  and  the  growth  of  city 
life.     He  seems  to  lose  sight  of  the  fact  that  the  earliest  possible  forms  of 


104     An  Introduction  to  the  Study  of  the  Constitution. 

It  is  not  at  all  likely  that  such  an  organization  existed 
among  the  earliest  people  as  that  indicated  in  the  quotation 
from  Mr.  Hearn's  work.1  The  group  among  these  is  one 
of  shifting  individuals,  and  the  notion  of  communal  prop- 
erty only  comes  into  existence  after  the  group  has  assumed 
somewhat  permanent  characteristics.  I  am  tempted  to 
believe  that  the  first  social  groups  are  kinds  of  associations  of 
individuals,  partly  founded  on  blood  relation,  and  partly  on 
primitive  forms  of  aggregation  and  the  need  of  mutual  support.2 
In  no  correct  sense  can  family  life  be  affirmed  to  be  the 
earliest  form  of  social  aggregation.  The  members  of  the 
earliest  group  were  probably  those  who  clustered  or  flocked 
around  or  became  associated  with  some  woman  or  women  of 
the  group.  The  first  social  forms  are  matriarchal  in  character. 
The  tribe  is  the  term  usually  employed  to  denote  the  first 
form  of  organization  not  based  exclusively  on  relationship. 
(Really  relationship  is  a  notion  foreign  to  the  mental  concep- 
tions of  savages.)"  We  have  no  complete  knowledge  of  the 
development  of  the  tribal  group  ;  the  term  tribal  being  itself  of 
vague  signification.  It  was  not  originally  large,  but  it  neces- 
sarily became  larger,  as  we  have  indicated  in  Chapter  II. 
Those  agencies  that  drive  beings  on  to  the  procuring  of  suste- 
nance and  the  satisfaction  of  animal  passions,  conspire  among 
animals  to  change  the  personnel  of  groups.  It  was  so  of 
primitive  human  groups.  They  disappeared  by  merger  in  other 
groups  or  by  destruction.     The  outcome  was  a  large  group 

grouping  are  incapable  of  the  worship  he  predicates,  and  that  the  form 
of  family  he  has  in  view  is  coeval  with  a  developing  city  life.  See  Taylor, 
The  Origin  of  the  Aryans,  p.  186. 

'Smith,  Kinship  in  Arabia,  reveals  the  early  matriarchal  condition 
and  the  form  of  earliest  kinship  organization.  Cf.  Reclus,  Primitive 
Folk,  Chapter  on  the  Nairs. 

2  Both  tended  to  produce  the  association. 

3  See  as  to  confirmation  of  this  view,  Spencer,  Principles  of  Sociology, 
Vol.  I.,  §318  ;  Gomme,  Village  Community,  39  seq.  ;  Smith,  Kinship  in 
Arabia;  Starcke,  Primitive  Family,  last  chapter.  And  see  post  Chap. 
IV.  What  is  said  in  Chapter  II.,  Section  II.,  ante,  must  be  taken  as  quali- 
fied by  what  is  here  said. 


Evidences  of  Physical  and  Social  Factors.  105 

or  series  of  groups.  Or,  if  intercourse  was  peaceful  and  the 
pursuit  of  sustenance  did  not  press  against  the  means  of 
livelihood  of  others,  a  favorable  increase  among  the  same 
group  might  occur.1 

The  place  of  woman,  of  progeny,  at  this  stage  of  life  was 
not  always  well  defined,  nor  did  defined  rights  as  such  exist 
for  them.  If  the  group  had  not  attained  the  pursuit  of  war, 
but  was  peaceful,  it  is  possible  that  the  women  might  retain  a 
better  place  compared  to  the  other  adults  than  in  groups 
addicted  to  war.2  The  latter  occupation  would  tend  to  ren- 
der them  subordinate  and  oppressed.  All  who  were  not 
warriors  would  be  resolved  into  an  inferior  class ;  the  pur- 
suit of  war  would  of  necessity  put  the  non-militant  indi- 
viduals into  the  inferior  class.  The  women  captured  in  war 
were  on  the  same  basis  as  the  serfs.  There  was  in  the 
earliest  stage  no  adoption.  The  female  infants  might  be 
killed  if  in  the  way,  the  male  would  be  permitted  to 
live,  tended  somewhat  as  young  animals  are  tended  by 
the  female  progenitor.  The  time  comes  when  the  young 
escape  from  the  control  of  those  who  are  their  elders 
and  are  left  to  get  food  for  themselves,  are  left  to  their 
own  devices,  and  the  time  likewise  comes  when  the  elders 
become  antiquated  and  an  encumbrance,  for  whom  neglect 
and  starvation  or  destruction  by  the  other  members  of  the 
group  is  the  ordinary  lot.3     The  practice  is  followed  because 

'The  effect  of  ancestral  worship  in  forming  family  groups  and  customs 
contemporaneously  with  the  expansion  of  early  city  life,  is  finely  shown 
by  Fustel  de  Coulanges,  Ancient  City,  Book  II.  The  phratria  is  a  form 
of  this  association,  preserving  its  domestic  features.  See  Platner,  Beitrage, 
etc.,  Chap.  V.,  and  Leist,  Zur  Gesch.  der  romischen  Societas.  Smith, 
Kinship  in  Arabia,  discloses  much  excellent  material  for  the  reconstitu- 
tion  of  the  earliest  forms  of  social  grouping,  and  he  fully  sustains  the  text. 

2  Cf.  Reclus,  Primitive  Folk,  chapters  on  the  Esquimaux  and  Kolarians. 

3  Grimm,  Rechtsalterthumer,  487;  Tylor,  Anthropology,  410;  Lub- 
bock, Prehistoric  Times,  447,  470,  501;  JRiclus,  Primitive  Folk,  38; 
Felix,  Einfluss  der  Sitten  u.  Gebriiuche,  etc.,  383.  It  is  not  likely  that 
worship  of  ancestors,  purely  domestic,  would  go  on  with  such  treatment 
of  the  old.  It  is  remarkable  that  the  gods  who  are  worshipped  as  tribal 
or  household  gods  are  usually  "  males." 


106     An  Introduction  to  the  Study  of  the  Constitution. 

it  is  natural,  not  because  the  savage  being  has  devised  a  cruel 
system.  And  the  practice  is  acquiesced  in  as  natural  by 
those  affected.  We  do  not  see  in  all  this  any  elaborate 
scheme  of  relative  rights  and  duties  which  mark  the  domestic 
relations  of  our  modern  day.1 

The  status  thus  defined  continued  on  with  variations, 
changing,  as  groups  consolidated,  into  larger  territorial  aggre- 
gates having  political  significance,  and  the  place  of  status 
which  marks  the  condition  of  early  society  was  replaced  by 
increasing  individuality  and  the  elements  underlying  contract. 
The  relative  place  of  marriage,  husband,  wife  and  child  changed 
with  these  social  revolutions.2  Promiscuous  intercourse  or 
what  was  its  equivalent,  and  absence  of  knowledge  of  home 
— the  domestic  place  of  woman — became  changed  and  super- 
seded by  other  characteristics.  War  led  to  man's  supremacy, 
to  the  increase  of  coherency  and  importance  and  size  of  groups, 
to  slavery,  to  the  spread  of  a  pastoral  and  an  agricultural 
life.  Unless  women  were  exceptional,  or  unless  the  group 
had  enlarged  to  self-maintaining  size,  with  woman  as  the 
head,  women  would  become  more  and  more  the  dependent 
members  of  the  social  forms  and  would  be  little  more  than 
the  captives  in  war.  Children  would  become  more  strictly 
bound  to  discipline  of  their  elders.  Man  would  become  the 
head  and  owner  of  the  children  and  be  known  as  such. 
After  a  while,  as  in  Rome,  the  power  of  the  household  group 
would  be  segregated  from  the  larger  consolidated  body-social, 
and  the  pairia  potestas  would  thus  become  an  assured  fact. 
With  this  development  the  capture  of  women  might  change  for 
the  bargain  and  sale  of  women  ;  the  utter  serfdom  and  menial 
position  they  occupied  be  exchanged  for  a  more  tolerable  con- 
dition, such  as  comes  with  the  recognition  of  the  more  civil- 

^ee  Waitz,  D.  R.  G.,  Vol.  I.,  53. 

2  The  fear  of  the  dead  and  the  belief  in  ghosts,  culminating  in  the  wor- 
ship of  household,  tribal  and  national  deities,  likewise  served  eventually 
as  a  cement  in  the  consolidation  of  human  groups  and  tended  to  keep 
them  together  and  to  color  their  development.  See  Fustel  de  Coulanges, 
Ancient  City,  Books  I.  and  II.;  Engels,  Der  Ursprung  der  Pamilie. 


Evidences  of  Physical  and  Social  Factors.  107 

ized  notions  of  maternity.  In  Rome  woman  had  attained  a 
very  high  place  in  many  instances,  as  also  in  Palestine  and 
in  the  Athens  of  Pericles.2  Nevertheless  she  was  not  a  person 
within  the  meaning  of  legality  for  most  purposes,  nor  were 
the  children  permitted  to  be  recognized  as  legal  persons. 

Women  are  still  bound  to  men,  in  marriage,  by  ties  that 
are  not  contractual  but  are  of  a  physical  coloring.  Status 
still  describes  the  character  of  the  married  state.  They  are, 
except  where  they  are  put  entirely  upon  the  plane  of  femme 
sole,  still  incapable  of  contracting  with  their  husbands,3  and 
the  language  which  confers  upon  them  the  power  of  disposi- 
tion of  their  property  as  if  sole  has  been  inadequate  to  root 
out  such  relics  of  status  as  right  of  curtesy*  the  incapacity  on 
the  part  of  the  wife  to  bind  herself  with  reference  to  her  prop- 
erty by  title  bond5  or  other  executory  contract,6  or  to  appoint 
an  attorney  to  convey  for  her." 

In  other  words :  When  women  were  sought  as  animals 
seek  to  satisfy  their  cravings  for  females,  the  woman  was 
an  object  of  value,  and  this  gave  her  ample  assurance  of 
existence.  She  appears  to  have,  like  animals,  enjoyed 
an  equal  place  with  males,  except  where  the  practice  of 
war  rendered  her  dependent  and  subordinate.  Then,  as 
already  said,  her  position  became  more  menial  and  she  became 
degraded  to  the  condition  of  the  serf.  There  was  no  large 
change  of  mental  action  involved  in  this,  simply  because  she 
had  originally  borne  the  aspect  of  a  thing  of  value.     Her 

JSee  Mayer,  Rechte  der  Israeliten,  Romer  u.  Athener,  Vol.  II.,  §222 
seq.;  McLennan,  Primitive  Marriage;  Spencer,  Prin.  of  Soc,  Vol.  I., 
Part  III.  See  also  ante,  Chap.  II.,  Sec.  II.  ;  and  Marquardt,  Privatleben 
der  Romer,  Part  1. 

2  Felix,  Entwg.  des  Eigenthums,  Vol.  II.,  Part  II.,  346  seq. 

3  Zrodolowski,  Das  romische  Privatrecht,  Vol.  II.,  278  ;  Puchta,  Institu- 
tionen,  Vol.  II.,  §219  ;  Amos,  Roman  Civil  Law,  276  seq.;  Mayer,  Rechte 
der  Israeliten,  etc.,  Vol.  II.,  §231  ;  Kelley,  Contracts  of  Married  Women. 

4Neely  v.  Lancaster,  47  Ark.  175. 
5Stidham  v.  Mathews,  29  Arkansas  650. 

6lbid.;  also  Chrisman  v.  Partee,  38  Arkansas  31 ;  Benton  Co.  v.  Ruth- 
erford, 33  Arkansas  640. 

1  Holland  v.  Moon,  39  Arkansas  120. 


108     An  Introduction  to  the  Study  of  the  Constitution. 

condition  was  probably  rendered  a  little  harder,  though  there 
is  no  evidence  that  she  appreciated  this  fact  at  that  time. 
Her  right  to  sustenance  at  all  times  in  savage  life  depended 
largely  upon  her  own  efforts,  and  the  birth  of  children  did 
not  long  incapacitate  her. 

When  women  came  to  be  purchased  instead  of  being  cap- 
tured, the  condition  of  society  must  have  been  improved,  even 
though  the  purchase  was  in  the  nature  of  a  barter.  "  The 
history  of  marriage  in  early  German  law  is  the  history  of  its 
gradual  enfranchisement  from  the  forms  of  a  sale."1  There 
was  no  consensual  but  a  real  contract,  in  which  the  price  or 
things  to  be  delivered  were  given  on  the  one  side  and  the 
woman'  on  the  other;  indeed  the  delivery  of  the  purchase 
price  carried  along  the  right  to  take  the  woman.  The 
betrothal  and  marriage  went  together.  The  laws  of  Ine  and 
Alfred  show  the  introduction  of  a  new  principle.  The  bargain 
is  binding  if  the  purchaser  paid  or  handed  over  a  small  sum 
or  thing  in  trade  as  earnest  money;  this  is  the  German  hand- 
geld,  arrha,  the  Lombard  launichild.2  This  led  to  the  point 
where  no  price  was  paid  but  only  a  promise  was  made. 
Eventually  the  price  was  given  to  the  woman  and  was  called 
her  morning-gift.  It  was  distinct  from  the  Roman  dos,  which 
was  originally  given  by  the  father  of  the  bride.  But  both  of 
these  tended  to  become  merged  in  one  and  the  same  thing 
when  it  came  to  turning  over  to  the  widow  her  dower -right.3 


1  Essays  in  Anglo-Saxon  Law,  165.  That  this  was  not  peculiar  to  early 
German  customs,  see  Post,  Bausteine  fiir  eine  allgemeine  Rechtswissen- 
schaft,  Vol.  I.,  §29  seq.;  same,  Ursprung  des  Rechts,  Chapters  III.,  IV. 
and  V.;  same,  Die  Geschlechtsgenossenschaft  der  Urzeit  und  die  Entste- 
hung  der  Ehe.  Felix,  Entwickelungsgeschichte  des  Eigenthums,  Vol. 
II.,  Part  II.,  Chap.  B.;  W.  Robertson  Smith,  Kinship  in  Arabia. 

2  See  further,  ante  pp.  56,  57. 

'Essays  in  Anglo-Saxon  Law,  170;  Grimm,  Deutsche  Rechtsalter- 
thiimer,  441.  "  Die  Ehe  wird  fiir  vollzogen  angesehen,  wann  die  Decke 
Mann  und  Frau  beschlagt  ***  das  Belt  beschritten  ist. "  On  the  succeeding 
morning  the  wife  receives  from  her  husband  a  respectable  gift  called 
morning-gift  (Jlorgengabe).  "  Schon  in  der  Pactio  Gunthcramni  et 
Childeberti  (Greg,  Tur.  9, 20)  werdenDosundMorganegibaunterschieden." 


Evidences  of  Physical  and  Social  Factors.  109 

Among  the  Anglo-Saxon  tribes  in  Britain  the  wife  continued 
under  the  control  of  her  spouse,  owing  him  obedience.  In 
her  own  sphere  as  housekeeper  she  had  attained  some  inde- 
pendence. The  husband  was  a  co-possesser  of  her  property, 
including  the  morning-gift.  The  husband,  or  the  husband 
and  wife,  or  the  wife  alone,  conveyed  her  property.  Gifts 
were  regularly  made  to  husband  and  wife  together,  which 
were  held  in  common ;  her  property  was  not  answerable  for 
his  debts  nor  his  for  her  debts.  A  homicide  committed  by  her 
had  to  be  atoned  by  her  kin.  The  wife's  kindred  protected 
her  property  from  alienation  by  the  husband.  At  his  death 
the  wife  was  entitled  to  all  of  her  property  including  the 
morning-gift,  or  if  there  was  no  such  gift  then  half  of  his 
property.  Divorce  by  mutual  consent  seems  to  have  been 
permitted.1  Some  of  these  privileges  exceed  those  which  the 
wife  had  later,  when  a  military  life  and  conquest  had  imposed 
new  conditions  favorable  to  males  and  unfavorable  to  females 
upon  the  country.  In  France  these  rights  remained  pretty 
intact  except,  with  reference  to  divorce,  but  in  England  the 
wife  lost  some  of  her  individuality,  though  upon  the  whole 
her  place  in  the  family  became  much  better  defined. 

The  growth  of  the  community,  the  consolidation  of  tribes 
into  a  national  mass  with  a  national  polity,  furthered  the 
rise  and  development  of  separate  family  groups.  These 
groups  were  already  well  developed  when  Rome,  through 
the  clergy,  imposed  its  doctrines  upon  the  English  Isle.  The 
modern  notion  of  family  took  hold  and  grew,  and  at  least  in 
England  the  wife  ceased  more  and  more  to  be  a  mere  servant 
whose  identity  was  wellnigh  lost  sight  of.  She  became  the 
emotional,  the  moral  element  of  the  family  group  that  made 

Grimm,  loc.  cit.  That  dos  and  morgengabe  became  identified  as  one,  see 
ibid.  442.  See  also  Zoepfl,  Deutsche  Rechtsgeschichte,  Vol.  III.,  §81c  ; 
S.  Mayer,  Rechte  der  Israeliten,  Romer  u.  Athener,  Vol.  II.,  §225  seq., 
esp.  §227  ;  Digby,  Hist,  of  the  Law  of  Real  Property,  112-116.  For  similar 
phenomena  among  Semitic  people,  see  Smith,  Kinship  in  Arabia. 
1  See  Essays  in  Anglo-Saxon  Law,  17C  seq. 


110     An  Introduction  to  the  Study  of  the  Constitution. 

mostly  for  righteousness ;  and  the  husband  remained  the 
warrior,  her  baron  or  lord,  the  legal  possessor  of  their  joint 
property.  She  became  incapable  of  controlling  her  separate 
property  in  person  or  through  her  kinsmen ;  became  inca- 
pable of  contracting  for  herself  except,  possibly,  for  neces- 
saries ;  her  husband  became  liable  for  her  torts,  for  her 
sustenance;  they  could  not  make  gifts  to  or  contract  with 
each  other,  and  so  on. 

The  children,  as  the  family  group  developed,  obtained 
recognition  by  the  community,  their  property  was  protected 
through  representatives,  though  their  earnings  during  minority 
still  remained  their  fathers',  and  their  inability  to  contract 
continued.  In  our  modern  day  the  married  woman  is  again 
securing  some  old  Anglo-Saxon  rights  and  some  new  ones, 
and  is  being  saddled  with  liabilities,  and  minors  are  being 
held  accountable  where  they  perhaps  would  not  have  been 
chargeable  in  earlier  days,  Yet  the  condition  of  married 
women  and  children  remains  largely  that  of  status  rather 
than  of  contract  so  far  as  concerns  the  marriage  relation ; 
while  the  servants  or  menials  have  become  amenable  to  a 
doctrine  of  agency  or  contract. 

The  modern  family  is  an  aggregate,  which  American  law 
assumes  to  exist  in  providing  homestead  rights  and  rules  of 
succession  for  the  provision  of  the  widow  and  children.  The 
solidarity  of  husband  and  wife  still  remains  a  recognized  fact, 
as  does  the  relation  of  husband,  wife,  child  and  servant  in 
reference  to  the  doctrine  of  defense  of  each  at  the  hands  of 
the  others. 

It  is  noteworthy  that  the  law  does  not  deal  with  the 
internal  regimen  of  the  modern  family,  except  so  far  as  it  is 
presented  in  outward  acts  affecting  a  larger  social  interest. 
It  deals  principally,  if  not  entirely,  so  far  as  domestic  rela- 
tions and  rights  are  concerned,  with  external  acts  or  with 
physical  objects.  It  does  not  probe  the  mind  and  seek  to 
fathom  and  regulate  motives  and  emotions.  What  it  does  in 
this  regard  is  by  way  of  anticipation,  and  it  punishes  or 


Evidences  of  Physical  and  Social  Factors.  Ill 

repairs  the  injuries  it  takes  cognizance  of  only  when  revealed 
by  some  form  or  mode  of  external  action. 

To  what  extent  the  law  should  ignore  the  doctrine  of 
status  and  put  women  upon  a  plane  with  other  persons  is 
still  a  much  debated  question.  Its  improper  solution  may 
tend  to  weaken  the  ties  of  society  and  again  introduce  that 
social  disintegration  which  marked  the  decline  and  fall  of  the 
Roman  Empire.  The  intellectual  effort  which  is  being  put 
forward  to  give  woman  the  franchise  and  office,  and  married 
women  full  right  to  undertake  business  and  contract  and 
convey  away  their  property  as  men  may  do,  is  the  culmina- 
tion of  that  tendency  of  social  development  which  marks  the 
decadence  of  status  and  the  adoption  of  contractual  relations. 
Its  outcome  seems  to  be  to  make  the  marriage  tie  solely  con- 
tractual in  its  nature,  and  hence  to  despoil  family  life  of  that 
cement  which  is  implied  when  marriage  is  treated  as  a  sacred 
and  binding  status  depending  on  hereditary  conditions  no 
less  than  on  contractual  relations.  Courts  and  lawyers  cannot 
solve  the  difficulty,  they  will  go  with  the  stream.  Yet  if 
they  can  open  the  minds  of  the  people  to  the  physical  factors 
that  play  their  part  in  the  formation  of  the  family  and  in 
promoting  its  lasting  growth  and  effects,  they  may  avert  the 
evil  implied  in  a  too  extensive  enfranchisement  of  women. 

Connected  with  the  subject  of  the  family  and  of  property 
is  that  of  succession  and  inheritance.  Prior  to  that  form  of 
status  which  implies  the  existence  of  a  group  bound  together 
by  ties  of  natural  descent  and  aggregation  there  is  no  likeli- 
hood of  a  succession  in  the  event  of  death.  In  succession 
the  acquisition  of  things  and  their  retention  is  implied.  It 
is  affirmed,  and  it  may  be  true,  that  the  notion  of  succession 
is  the  outcome  of  an  early  practice  of  preserving  the  worship 
of  ancestral  spirits.1  The  most  natural  form  of  inheritance 
is   that  which   contemplated  an   equal  division  among  the 

1  Maine,  Early  Law  and  Custom,  Chap.  IV.;  Hearn,  Aryan  Household, 
Chap.  III.,  §6  ;  Fustel  de  Coulanges,  Ancient  City,  Book  II.,  Chap.  VII.; 
Leist,  Graeco-Ital.  R.  G.,  Book  I. 


112     An  Introduction  to  the  Study  of  the  Constitution. 

descendants.1      And  this  is  the  form  of  distribution  which 
early  prevailed  regarding  movables.2     But  the  community- 
life  and  holdings  of  early  days  were  not  consistent  with  such 
a  mode  of  succession.     The  ownership  was  not  in  the  indi- 
vidual, and  consequently  at  any  one's  death  there  was  no 
idea  of  inheritance.11     If,  as  was  the  case  generally  among 
patriarchal  groups,  some  one  person  represented  the  com- 
munal group,  had  the  same  powers  as  the  patria  potestas,  the 
person  who  succeeded  him  was  likely  to  be  at  first  the  best 
male  representative  who  could  defend  and  maintain  the  pos- 
sessions of  the  group.     This  was  not  at  first  necessarily  the 
male  child.4     The  line  of  succession  would  fall  upon  that 
person  who  was  the  individual  of  the  group  adapted,  under 
all  the  circumstances,  to  take  up  the  functions  of  representa- 
tive.    If  intercourse  was  promiscuous,  and  no  family  life,  in 
a  modern  sense,  had  developed,  such  a  representative  might 
be  other  than  child,  and,  if  military  practices  had  not  inter- 
vened to  prevent,   might   be  in  a  female.     The  prevalent 
practice  seems  to  have  been  in  a  later  day  to  select  a  male 
representative  who  was  the  nearest  in  the  line  of  succession 
to  maintain  the  worship  of  the  household  gods.5     A  military 
life  engendered  those  factors  which  made  for  social  cohesive- 
ness  and  political,   unity;   it   likewise   introduced   military 
autocracy,  kingly  rule,  and   that   mode    of  obtaining  land 
which  is  implied  in  kingly  grant.     As  is  stated  in  another 
chapter,  it  likewise  led  to   the   establishment   of  a   family 
integrity  as   understood   nowadays.       Then   it   was,  except 

^oss,  Early  Landholding  among  the  Germans,  24  seq.,  53;  Maine, 
Early  Hist,  of  Inst.,  195.  But  as  to  who  are  such  descendants  see  Engels, 
Ursprung  der  Familie  ;  Leist,  loc.  cit. 

2  Hearn,  Aryan  Household,  Chap.  VII.,  §6. 

3Hanssen,  Agrarhist.  Abh.,  Vol.  I.,  77,  "  Wechsel  der  Wohnsitze  u. 
Feldmarken  in  germanischer  Urzeit." 

4 Spencer,  Principles  of  Sociology,  Vol.  I.,  Part  III.,  Chap.  IX.;  Hearn, 
Aryan  Household,  Chap.  VII.,  ?3. 

5Maine,  Early  Law  and  Custom,  Chap.  IV.;  Hearn,  Aryan  Household, 
Chap.  III.,  §G  ;  see,  however, Morgan,  Ancient  Society,  Part  III.,  for  a  dif- 
ferent view.     See  also  Engels,  Ursprung  der  Familie,  etc. 


Evidences  of  Physical  and  Social  Factors.  113 

where  agricultural  customs  had  introduced  a  different  mode 
of  succession,  that  the  eldest  male  became  the  heir  of  the 
family  holding. 

In  Anglo-Saxon  times,  among  the  tribes  inhabiting 
western  Europe,  the  mode  of  succession  was  like  that  which 
prevailed  in  Britain.1  There  the  landed  possessions  were 
those  of  the  family ;  but  the  family's  private  property  grad- 
ually became  the  private  property  of  the  individual.  Yrfe- 
land,  heir-laud,  was  originally  inalienable,  and  the  question 
of  intestate  succession  did  not  arise  with  regard  to  it,  for  if 
the  family  died  out  the  land  reverted  to  the  community. 
The  next  step  in  its  development  into  private  property  was 
attained  when  the  head  of  the  family  obtained  rights  over  the 
land  by  consent  of  the  members  of  the  family.  Then  we  find 
private  ownership  and  power  of  alienation  outside  of  the 
family  by  consent  of  the  king  and  witan.  Ecclesiastical 
influence  introduced  wills,  which  were  first  used  to  endow 
ecclesiastical  institutions.  In  intestacy  the  estate  was  some- 
times divided  among  all  the  children,  from  which  we  have 
the  Kentish  custom  of  gavelkind.  The  land  which  was 
attended  with  the  privilege  of  alienation  is  to  be  found  prin- 
cipally among  that  class  of  holders  who  held  of  the  crown  by 
military  service,  the  privilege  of  alienation  being  extended, 
where  possessed,  by  the  king.  If  the  king  did  not  extend 
this  privilege  it  reverted  to  him  upon  the  death  of  his  donee. 
In  England  the  Norman  Conquest  led  to  the  forcible  ejection 
of  the  more  prominent  Saxon  holders  from  their  holdings, 
but  the  mass  of  cultivators  were  not  disturbed.  On  the  con- 
tinent of  Europe  the  modes  of  holding  land  corresponded  in 
the  main  with  those  of  Great  Britain,  and  the  Conquest 
introduced  into  England  no  material  change,  except  that  it 
fastened  upon   the   Anglo-Saxon   people  a    more   elaborate 

'Serutton,  Land  in  Fetters,  Chaps.  I.,  II.  and  III.;  Hearn,  Aryan 
Household,  Chap.  III.,  £6;  Zoepfl,  Deutsche  Rechtsgeschichte,  Vol.  HI., 
112  seq.\  Maine,  Early  Law  and  Custom,  Chap.  IV.;  Waitz,  D.  V.  G., 
Vol.  I.,  54  seq.\  Grimm,  Deutsche  Rechtsalterthiimer,  4C6  seq.\  Sheldon 
Amos,  Roman  Civil  Law,  Part  II.,  Chap.  V. 


114     An  Introduction  to  the  Study  of  the  Constitution. 

and  stricter  form  of  manorial  ownership.  The  duty  of 
rendering  military  service  among  the  English  became 
stricter  and  the  doctrine  of  primogeniture  found  more 
and  more  practical  application.  The  small  holders  who 
were  not  in  the  condition  of  dependents  of  the  soil  now  grad- 
ually became  such,  rendering  definite  service  and  holding  a 
socage  tenure  from  king  or  lord,  while  the  mass  of  tenants 
whose  status  remained  unchanged  continued  in  the  communal 
enjoyment  of  their  possessions,  rendering  services  as  before. 
The  custom  of  alienation  was  not  known  among  them  until 
the  increase  of  population,  the  growth  of  the  cities  and  the 
spread  of  industrial  and  commercial  activity  led  to  the  desire 
for  individual  progress  and  culminated  in  a  departure  from 
communal  customs.  Enclosures  likewise  tended  to  the  same 
end :  all  of  which  has  been  discussed  in  another  chapter. 
But  the  result  was  that  the  tendency  toward  alienation 
increased,  and  lands,  except  where  manorial  customs  or  rights 
intervened,  became  alienable.  But  the  doctrine  of  primogeni- 
ture had  fastened  on  the  land,  through  the  spread  of  baronial 
influence,  prevailing,  except  where  the  agricultural  cultivators 
had  finally  established  and  obtained  recognition  for  an  older 
or  different  mode  of  succession.  Trade,  too,  tended  to  over- 
throw a  military  mode  of  succession.  We  note  that  borough 
English  and  gavelkind  remained  modes  of  succession  along- 
side of  primogeniture ;  both  relics  of  early  tribal  life.1  We 
note  also  that  multiform  other  customs  prevailed  in  different 
manors  and  localities,  indicating  that  in  a  large  measure, 
before  national  unity  began  to  form,  and  national  courts  and 
other  agencies  began  to  create  a  national  policy,  each  com- 
munity had  its  own  peculiar  customs  of  succession  and 
descent.2 


'Scrutton,  Land  in  Fetters,  51  seq.,  54  seq.  Maine,  Early  History  of 
Institutions,  188  seq.,  has  given  us  an  explanation  of  the  origin  of  gavel- 
kind. See  also  as  to  this  and  borough-English,  Hearn,  Aryan  Household, 
82,  83;  Scrutton,  Land  in  Fetters,  60  seq.;  Denman  Ross,  Early  History 
of  Landholding  among  the  Germans,  104  ;  Bastian,  Rechtsv.,  p.  185. 

2 Scrutton,    Land    in    Fetters,    63    seq.;    Hanssen,    Agrarhistorische 


Evidences  of  Physical  and  Social  Factors.  115 

In  early  days,  possibly  after  the  tribal  group  had  lost  its 
earlier  forms  and  the  household  developed  a  modern  phase 
of  family  tie  and  kindred,  we  must  look  for  the  successores, 
yrfe,  heirs  and  successors,  among  those  who  were  best  adapted 
or  remained  to  represent  the  family  property.1  At  first 
chiefship  was  the  character  of  the  holding  of  the  successor  f 
showing  its  derivation  from  warlike  customs  and  tribal 
discipline.  Mr.  Hearn  says  "  he  succeeded  to  an  office,  and 
not  to  an  estate."  As  the  family  narrowed  down  to  blood 
relations,  the  notion  of  heirship  assumed  its  modern  aspect. 
Whereas,  prior  to  this,  even  in  Roman  times,  the  estate  is 
the  basis  of  relationship  and  right  of  heirship,  giving  color 
and  substance  to  it,3  and  is  spoken  of  as  a  corporate  thing  or 
universitas,  in  the  later  form  consanguinity  is  a  controlling 
factor.  As  already  stated,  the  unification  and  cohesion 
of  people  into  larger  political  masses  leads  to  the  eventual 
group  bound  together  by  blood-relationship.  We  see  this 
modern  phenomenon  in  its  blossom  in  Rome,  while  still 
the  notion  of  succession  retains  much  of  its  tribal  char- 
acter.4 Blood-relationship,  strictly  so  called,  came  into 
existence  at  that  stage  of  social  development  which  rendered 
possible  an  appreciation  of  family  ties  and  degrees  of  con- 
sanguinity. Pontifical  influences  and  ingenuity  in  ancient 
and  modern  form  contributed  no  little  to  produce  this  result 
and  give  rise  to  that  abhorrence  of  incest  which  plays  so 

Abhandlungen,  Vol.  II.;  Felix,  Entw.  des  Eigenthums,  Vol.  II.  That  a 
similar  statement  holds  true  of  early  Roman  law,  see  Corssen,  Beitriige 
zur  italischen  Sprachkunde,  p.  207,  on  the  derivation  of  "  lex." 

'See  Scrutton,  supra,  Chap.  I.;  Zoepfl,  D.  R.  G.,  Vol.  III.,  §^112, 113  ; 
Hearn,  Aryan  Household,  Chap.  VII.,  §3,  Chap.  III.,  §6. 

2  Hearn,  loc.  cit. 

3 See  Zoepfl,  D.  R.  G.,  Vol.  III.,  §§113,  111  ;  Holmes,  Common  Law, 
Lee.  X. 

*  Upon  some  such  theory  is  probably  to  be  explained  its  continuance  in 
Palestine  long  after  priests  and  their  moral  influence  had  come  into 
existence.  A  son  procreated  by  incest  or  adultery  was  legitimate,  even  in 
the  post-exilic  period.  S.  Mayer,  Rechte  der  Israeliten,  Romer  u. 
Athener,  Vol.  II.,  p.  463. 


116     An  Introduction  to  the  Study  of  the  Constitution. 

conspicuous  a  part  in  the  creation  of  these  ties  and  this 
blood-relationship.  Yet,  in  all  likelihood,  the  family  tie  and 
the  practice  of  exogamy  together  may  have  contributed  in  the 
production  of  the  result,  for  it  is  not  likely  that  the  masses 
would  be  influenced  in  their  daily  life  by  clerical  persuasion 
to  such  an  extent  as  to  change  their  habits  of  life,  if  those 
habits  themselves  had  not  conspired  largely  to  produce  the 
same  result.1 

Evidences  of  the  early  succession  were  that  the  ancestor 
could  not  disinherit  his  successor,  the  successor  had  to  take 
unless  he  abandoned  the  group,2  the  successor  was  liable  to 
the  full  extent  of  his  inheritance  for  the  debts  and  delicts 
of  his  predecesssor ; 3  no  descendant  of  the  heir  could  take, 
but  the  succession,  if  he  was  dead,  would  go  to  one  of  the 
group  who  stood  in  the  same  degree  to  the  predecessor.4  The 
development  of  the  family  group  along  the  line  of  consan- 
guinity and  the  gradual  increase  in  the  alienability  of  prop- 
erty have  given  rise  to  different  tables  of  degrees  of  kinship 
and  to  dispositions  by  will  and  deed  or  other  conveyance. 
The  fact  that  priestly  influence  has  been  the  early  intellectual 
creator  of  formulae  and  inventions  to  carry  out  objective 
reforms  and  changes  has  tended  to  give  a  form  and  coloring 
to  many  devises  known  in  the  history  of  law  which  would 
otherwise  probably  not  have  existed.  The  modern  doctrines 
of  administration  and  distribution  find  difficulties  growing 
out  of  this  condition  of  things.  One  of  these  in  English 
law,  under  acts  relating  to  administration  of  the  estates  of 
deceased  persons,  is  that  an  administrator  who  has  committed 
waste  is  not  liable  to  his  successor  for  wasted  assets,  but  only 

'Zoepfl,  D.  R.  G.,  Vol.  III.,  §113,  VII.  ;  Scrutton,  Land  in  Fetters, 
Aseq.;  Ross,  Early  Hist,  of  Laudholding  among  the  Germans,  54  seq.; 
Amos,  Civil  Law,  319 ;  Hearn,  Aryan  Household,  Chap.  III.,  §5. 

2 Zoepfl,  D.  R.  G.,  Vol.  III.,  §113,  VIII. ;  Amos,  Civil  Law,  328,  330  ; 
Hearn,  Aryan  Household,  Chap.  III.,  §6. 

3Zoepfl,  b.  R.  G.,  Vol.  III.,  §113,  IX.;  Amos,  Civil  Law,  332. 

4 Zoepfl,  D.  R.  G.,  Vol.  III.,  §113,  X.  ;  Ross,  Early  Hist,  of  Landhold- 
ing  among  the  Germans,  48. 


Evidences  of  Physical  and  Social  Factors.  117 

for  assets  in  specie^  Now  since  creditors  large  and  small, 
and  quite  numerous,  are  not  infrequently  interested,  in 
addition  to  heirs  or  those  who  claim  to  be  heirs,  it  very  often 
becomes  a  difficult  matter  to  say  who  shall  bring  the  suit  for 
the  recovery  of  wasted  assets,  even  after  their  value  has  been 
ascertained.  The  estate  of  a  deceased  person  is  still  a  corpus 
so  long  as  it  remains  in  administration,  but  only  so  long  as 
it  remains  intact.  After  it  is  dissipated  it  seems  to  require 
the  skill  of  the  best  intellectual  ingenuity  to  work  out  satis- 
factory results.  It  would  have  probably  been  far  better  to 
treat  such  an  estate  as  a  corpus  even  as  to  that  portion  which 
has  been  wasted,  and  to  allow  the  successor  of  a  defaulting 
administrator  to  recover  for  the  diminution  thus  arising. 

The  place  of  family  spoken  of  by  Aristotle,  and  referred  to 
in  the  first  chapter  of  this  book  in  the  development  of  con- 
stitutional law,  is  illustrated  by  this  chapter.  We  note  how 
vague  all  general  affirmations  of  family  influence  in  the 
creation  of  jurisprudence  are,  and  yet  we  observe  its  changing 
phases  coming  up  out  of  the  wrecks  and  ruins  of  the  past  to 
give  or  help  give  a  basis  for  a  broader,  national,  constitu- 
tional life,  in  our  most  modern  sense. 

SECTION    III. — IN   THE   LAW   OF   OBLIGATIONS. 

An  obligation  may  grow  out  of  a  misfeasance  or  a  non- 
feasance or  a  contract.  Delicts  and  contracts  produce  obli- 
gations. An  obligation  rests  upon  all  human  beings  in  a 
greater  or  lesser  degree  to  perform  duties  to  mankind,  to 
kindred  and  to  the  state.  Such  is  its  present  broad  signifi- 
cation, acquired  from  Roman  sources.3  In  its  beginning  it 
represented  much  less.     We  now  consider  its  signification 

'Williams  on  Executors,  Vol.  I.,  raarg.  pp.  822-827;  Beall  v.  New 
Mexico,  16  Wallace  Rep.  540  ;  State,  for  use,  etc.  v.  Rottaken,  34  Ark. 
148  seq.  An  administrator  cannot  set  aside  conveyances  made  by  dece- 
dents in  fraud  of  creditors.  Wait,  Fraudulent  Conveyances  and  Cred- 
itors' Bills,  §112. 

2Ihering,  Geist,  etc.,  Book  III.,  Part  I.,  §54,  p.  183. 


118     An  Introduction  to  the  Study  of  the  Constitution. 

broad  enough  to  embrace  all  of  those  duties  resting  upon 
human  beings  which  the  law  requires  them  to  fulfill.  Such 
might  be  its  legal  signification  now.  It  was  thus  defined  in 
Roman  law  :  "  Obligatio  est  juris  vinculum,  quo  necessitate 
adstringimur  alicujus  solvendae  rei,  secundum  nostrae  civi- 
tatis  jura."1  It  appears  to  have  been  a  legal  bond,  that  tied 
the  obliged  person  down  to  something ;  he  was  necessitated 
to  do  it.  The  definition  merely  summed  up,  in  a  general 
form,  what  in  detail  occurred,  and  had  occurred  time  out  of 
memory,  long  before,  in  the  Roman  world. 

These  duties  had  expanded  as  the  social  groups  formed 
and  enlarged.  The  stipulatio  might  represent  eventually  the 
conspicuous  form  of  obligatio,  and  depositum,  pignus,  mutuum, 
commodatum,  mandatum,  emptio-venditio,  might  represent 
classifications  of  contractual  obligation  as  the  community 
assumed  that  larger  sphere  which  goes  with  increase  and 
consolidation  of  population.  Yet  the  basis  upon  which  all 
rested  comprised  the  relations  which  existed  between  indi- 
viduals, or  individuals  and  collective  groups,  respecting  a 
greater  or  less  control  over  another's  actions,  with  reference 
to  that  other's  sphere  of  activity,  either  with  or  without 
regard  to  the  use,  enjoyment  or  possession  of  some  other 
external  thing.2 

No  doubt  in  the  earliest  stages  no  abstract  notion  of  duty 
or  obligation  existed.  The  things  that  were  done,  habit  or 
spontaneity  brought  about,  or  were  enforced  by  superior 
power.  Deprivation  of  a  possession  might  lead  to  forcible 
redress  and  recaption,  or  some  other  mode  of  revenge  which 
animals  visit  on  offenders.8     Ties  of  birth  gave  possibility  to 

^nst.  3,  13,  Pr.  Maine,  Ancient  Law,  Chap.  IX.  See,  however, 
Puchta,  Institutionen,  §262  seq.;  Amos,  Civil  Law,  Part  II.,  Chap.  III.,  §1. 

2Savigny,  Heutigen  romischen  Rechts,  Vol.  I.,  339;  Ihering,  Zweck 
im  Recht,  Vol.  I.,  156  seq.,  270  seq. 

3  Compare  Maine,  Early  Hist,  of  Institutions,  Lecture  IX.;  Post, 
Ursprung  des  Rechts,  p.  110;  same,  Bausteine,  §§71,  148,  149;  Inst. 
III.,  xiii.,  2;  Maine,  Ancient  Law,  Chap.  IX.;  Spencer,  Principles  of 
Sociology,  Vol.  II.,  Part  V.,  Chap.  XIV.,  §533;  same,  Justice,  Chap. 
XV.;  Ilunter,  Roman  Law,  352  seq.',  Ihering,  Geist,  etc.,  Part  III., 
Subd.  I  (3ded.),210. 


Evidences  of  Physical  and  Social  Factors.  119 

the  transfer  of  possession  for  temporary  or  permanent  pur- 
poses ;  a  thing  might  be  exacted  from  him  who  had  to  be 
coerced  or  guarded  against ;  and  so  mutuum  and  pignus  might 
become  possible  eventualities.  So  general  a  phenomenon  as 
is  represented  by  obligation  lies  in  a  universal  custom  or 
habit,  whose  beginnings  are  apt  to  go  back  to  those  earliest 
forms  of  activity  from  which  society  emerged. 

It  seems  to  me  that  when  external  tribunals  came  to 
enforce  the  performance  of  duties,  that  is  the  redress  of 
wrongs,  they  were  impelled  by  a  prevalent  feeling — the  out- 
come of  the  life  of  the  mass — that  the  status  had  been 
changed,  whereby  some  one  was  deprived  of  what  was  part 
of  his  integrity  as  a  member  of  the  group.  Thus  the  aspect 
of  dominion  over  some  physical  object  would  enlarge  to 
embrace  that  of  which  the  dominion  had  been  temporarily 
lost,  and  self-help  by  the  wronged  one  or  compensation  by 
way  of  transfer  of  some  other  object,  or  security  to  make 
good  his  claim  on  the  part  of  the  wrongdoer,  would  result.1 
Here  are  embryonic  beginnings  of  a  quid  pro  quo. 

The  earliest  modes  of  redress  implied  the  idea  of  recaption 
or  of  remedying  a  trespass  by  more  or  less  forcible  means." 
Upon  this,  later  forms  of  actions  were  developments.  In  all 
forms  of  action  of  early  stages  the  aim  seems  to  be  to  restore 
the  prior  status.4  The  development  of  procedure  introduced 
the  classifications  of  obligations  which  are  peculiar  to  later 
systems  of  jurisprudence.5    They  become  more  clearly  defined 

'See  chapter  on  Procedure.  See  also  Law  Quarterly  Review,  Vol.  III., 
166  seq.;  Holmes,  Common  Law,  Lee.  VII.;  Law  Quarterly  Rev.,  Vol.  I., 
162  ;  Pollock  on  Torts,  1-3  ;  Post,  Bausteine,  etc.,  §§148,  149. 

2 But  see  Schrader,  Handelsgeschichte  u.  Warenkunde,  9  seq.;  Leist, 
Graeco-Ital.  R.  G.,  Book  II.,  Chap.  II.,  §31,  and  p.  265. 

3  Pollock  on  Torts,  1,  2  and  3,  and  Appendix  A,  note  by  P.  W.  Maitlaud  ; 
Holmes,  Common  Law,  Lees.  III.,  V.,  VII.;  Leist,  Graeco-Ital.  R.  G., 
Book  II.,  Chap.  III.  and  succeeding  chapters. 

4  Maine,  Ancient  Law,  concluding  part  of  Chap.  V.;  Post,  Bausteine, 
etc.,  §§40,  47,  71 ;  same  author,  Ursprung  des  Rechts,  Chap.  XIII. 

5  Pollock  on  Torts,  2,  467,  note  by  P.  W.  Maitland.  Sir  Frederick 
Pollock  (Oxford  Lectures  and   Essays,  p.  61)  and   Leist  (Graeco-Ital. 


120     An  Introduction  to  the  Study  of  the  Constitution. 

and  more  numerous  as  the  courts  and  lawyers  assume  more 
definite  and  extensive  functions.  In  this  way  is  to  be 
explained  the  classification  of  delicts  and  contractual  obliga- 
tions, and  of  the  manifold  heads  of  each.  The  process  of 
development  takes  up  the  changing  views  and  usages  of  the 
community,  and  may  color  them,  render  them  perhaps  more 
difficult  to  comprehend  and  less  adapted  to  real  needs  than 
if  this  agency  were  less  active.  And  to  meet  the  evil,  new 
forms  and  fictions  may  have  to  be  devised  by  bench  and  bar 
so  that  the  law  may  be  consistent.  But  I  do  not  share  the 
view  of  Ihering  that  this  is  a  meritorious  activity  of  bench 
and  bar,  whereby  the  law  is  maintained  as  a  conservative 
and  perennial  benefactor.  The  evil  of  such  a  course  lies 
originally  in  a  want  of  appreciation  or  observance  of  the 
drift  of  the  community.  The  Roman  system  of  procedure 
was  as  largely  open  to  objections  on  account  of  its  techni- 
calities and  detail  as  was  the  common-law  procedure  of 
England.1 

This  classificatory  influence  was  conspicuous  in  Roman  law, 
in  giving  more  definiteness  to  the  notion  of  the  quid  pro  quo 
which  constituted  the  causa  of  contracts  in  the  days  of 
Justinian  ;3  and  it  was  likewise  conspicuous  in  creating  the 
notion  of  consideration  which  forms  the  criterion  of  English 
and  American  contracts.  But  I  do  not  concur  in  the  state- 
ment that  courts  originated  the  conception  of  consideration4 
or  of  causa.     The  earliest  forms  of  exchange,  and  the  earliest 

R.  G.,  ^fiO-62)  base  the  origin  of  contractual  law  upon  early  treaties 
between  tribes.  No  doubt  these  helped  to  create  the  ultimate  contractual 
characteristics,  but  they  were  not  the  sole  elements. 

»Compare  Keller,  Der  romische  Civil-Process,  etc.,  with  Stephen  on 
Pleading. 

2  Compare  Puchta,  Institutionen,  §271  seq.;  Savigny,  Heutigen  rom. 
Rechts,  Vol.  III.,  360  &  n.;  Vol.  IV.,  225,  Vol.  V.,  526.  Holland,  Ele- 
ments of  Jurisprudence,  182. 

3 Law  Quarterly  Review,  Vol.  III.,  166  seq.;  Holmes,  Common  Law, 
Lee.  VII.;  Pollock  on  Torts,  App.  A. 

4 Holmes,  Common  Law,  Lee.  VII.;  Salmond,  Law  Q.  Rev.,  Vol.  III., 
166  seq. 


Evidences  of  Physical  and  Social  Factors.  121 

forms  of  redress  for  property  taken,  contain  in  solution  the 
idea  implied  in  consideration.  And  they  may  be  an  outcome 
of  original  gifts  made  to  appease,  and  for  which  gifts  were 
made  in  return.1  Neither  can  I  share  the  view  of  Mr.  Hare 
that  "  consideration "  is  the  criterion  which  distinguishes 
English  legal  notions  of  contract  from  that  of  Rome.2  Meet- 
ing of  minds  is  as  much  an  element  in  English  as  in  Roman 
law,  and  Roman  law3  gave  almost  the  same  effect  to  the 
notion  of  a  quid  pro  quo  as  does  English  jurisprudence.4 

There  are  in  every  system  of  developed  jurisprudence 
numerous  forms  of  contracts,  such  as  written  and  verbal, 
express  or  implied  or  constructive  contracts,  contracts 
relating  to  personal  property  and  to  land,  bailments  of  all 
kinds  including  pledges,  mortgages,  agency,  partnership, 
sale,  assignment,  etc.  These  are  the  headings  for  branches 
of  that  class  of  obligations,  and  contain  the  essential  ele- 
ments of  the  contract.  They  do  not  represent  deductions 
logically  made  from  a  general  postulate ;  they  are  the  slow 
work  of  developing  industrial  social  activity.  The  summa- 
tion which  is  now  the  definition  of  contract  was  long  un- 
known in  early  jurisprudence,5  and  does  not  in  all  things 
find  an  echo  in  Roman  jurisprudence.  The  field  of  torts 
ramified  in  a  similar  way.  The  earliest  form  of  redress  was 
self-help  for  injury  done  to  the  person,  or  some  possession 
taken  which  was  regarded  as  of  value.6     The  word  tort  is 

'Schrader,  Handelsgeschichte  u.  Warenkunde,  9  seq.  Compare  Leist, 
Graeco-Ital.  R.  G.,  §34. 

5  Hare,  Contracts,  Chap.  VII.  Compare  Pollock,  Contracts,  151 ;  also 
LawQ.  Rev.,  Vol.  III.,  1G6. 

3  Holland,  Elements  of  Jurisprudence,  174  ;  Wharton,  Contracts,  §4, 
seq.  Rewards  offered  are  binding,  Pollock  on  Contracts  (Wald's  ed.), 
13,  20.  Contracts  by  correspondence,  ibid.  14.  Acceptance  must  be 
communicated,  38  Mich.  692  ;  Anson,  Contracts,  Part  II.,  Chap.  I.,  g7. 

4Puchta,  Institutionen,  §272;  Holland,  Elements  of  Jurisprudence, 
182.  Compare  Law  Quarterly  Review,  Vol.  III.,  166,  and  Anson,  Con- 
tracts, Part  II.,  Chap.  II.;  with  Hare,  Contracts,  Chap.  VII. ;  Holmes, 
Common  Law,  Lee.  VII. 

5  Pollock  on  Torts,  14,  15  ;  Ihering,  Zweck  im  Recht,  Vol.  I.,  270  seq. 

6  See  next  chapter.  Cf.  Pollock  on  Torts,  2,  467,  note  by  Mr.  P.  W. 
Maitland. 


122     An  Introduction  to  the  Study  of  the  Constitution. 

probably  "  nothing  but  the  French  equivalent  of  our 
English  word  wrong.  In  common  speech  everything  is  a 
wrong,  or  wrongful,  which  is  thought  to  do  violence  to  any 
right."  ] 

All  contracts  aim  at  objects,  not  at  mental  conditions. 
The  law  takes  no  notice  of  mere  mental  operations  apart 
from  a  physical  expression  of  them.2  It  is  a  trite  law  that 
the  thought  of  man  is  not  triable,  for  even  the  devil  does  not 
know  what  the  thought  of  man  is.3  The  end  in  view  must 
be  of  some  utility;  it  must  not  aim  at  physical  impossi- 
bilities. And  though  immoral  contracts  are  vitiated,  and 
these  involve  elements  not  depending  for  their  distinguishing 
features  on  physical  factors,  still  there  is  a  large  play  of 
such  factors  here,  and  confessedly  of  social  factors,  for 
morals  themselves  are  largely  rules  of  action  which  the 
growth  of  society  has  left  as  a  heritage.4  If  a  contract  is 
always  an  agreement  it  is  such  because  that  is  frequently 
deduced  from  the  acts  of  the  parties.5  Credere  in  its  broadest 
signification  was  understood  by  Roman  jurists  to  denote  the 
transfer  of  a  thing  with  the  attendant  obligation  on  the  part 
of  the  receiver  to  return  it.6  Creditor  was  he  who  gave  some 
thing,  debitor  he  who  received   a  thing.7     When  the  thing 

1  Pollock  on  Torts,  1,2. 

sAhearn*>.  Ayers,  38  Mich.  092  ;  Pollock  on  Contracts  (Wald's  ed.)( 
2,  note  a. 

3 Brian,  Ch.  J.,  17  Edw.  IV.,  T.  Pasch.  Case  2,  quoted  in  Brogdan  v. 
Met.  Ry.  Co.,  2  App.  Cas.  662,  692. 

4Spencer's  Data  of  Ethics;  Stephen,  Science  of  Ethics;  Maudsley, 
Physiology  and  Pathology  of  the  Mind  ;  same  author,  Body  and  Will ; 
Bain,  Senses  and  the  Intellect ;  same  author,  The  Emotions  and  the  Will ; 
Ribot,  Diseases  of  Memory ;  same  author,  Diseases  of  the  Will ;  Sully, 
Illusions  ;  Luys,  Brain  and  its  Functions  ;  Lewes,  Problems  of  Life  and 
Mind ;  Romanes,  Mental  Evolution  in  Animals ;  Fowler,  Progressive 
Morality;  Pollock,  Essays  in  Jurisprudence  and  Ethics,  Chap.  XL; 
Ihering,  Zweck  im  Recht,  Chap.  IX.;  Cope,  Origin  of  the  Fittest,  450  seq. 

6  Such  was  the  mode  of  its  origin.     Zweck  im  Recht,  Vol.  L,  270. 
6 Zweck  im  Recht,  Vol.  I.,  157. 

7  Ibid.  158, 271.  Compare  Schrader,  Handelsgeschichte  u.  Warenkunde, 
9  seq. 


Evidences  of  Physical  and  Social  Factors.  123 

came  to  represent  a  right  of  ownership  without  dominion 
over  or  possession  of  the  object,  it  likewise  resulted  that 
abstraction  would  put  a  duty  on  a  debtor  of  returning  an 
equivalent  instead  of  the  thing  itself.  The  creation  of  money, 
coin,  or  a  circulating  medium  tended  to  produce  the  duty  of 
making  return  in  this  representative  of  value.1  Agency  is 
an  enlargement  of  that  form  of  representation  which  found 
expression  first  in  procurators  to  represent  those  who  had  no 
right  to  appear  for  themselves  in  the  tribunals.  The  baron, 
or  master,  was  the  first  form  of  this  kind  of  representative. 
A  cognitor  might  come  to  represent  another.  A  surety  or 
warrantor  for  or  to  another  was  frequently  obliged  in  early 
days  to  answer  for  his  principal  or  warrantee.2  The  early 
town  or  village  communities  had  to  answer  for  the  wrongs 
done  by  members  of  the  groups.8  A  combination  that  owned 
property  in  common  and  accumulated  property  for  common 
gain,  especially  when  commercial  purposes  were  in  view, 
became  designated  as  a  partnership,  joint  stock  company,  or 
a  corporation,  in  English  or  American  law  ;  societas  in  Roman 
law.4  In  the  absence  of  other  evidence  a  partnership  might 
be  considered  as  organized  for  commercial  purposes.5 

Nowadays  contracts  in  manifold  ways  disclose  their 
physical  bases.  The  consideration  usually  involves  a  physi- 
cal gain  or  disadvantage.  The  carrier's  contract  is  for  trans- 
portation of  commodities,  and  requires  delivery  unless 
excused  by  physical  events.  Words  are  inadequate  to 
relieve  the  carrier  from  the  consequences  of  his  own  negli- 
gence. All  bailments  are  based  upon  the  custody  by  the 
bailee  of  objects  of  value.     In  sales  or  transfers  of  property 

'Zweck  im  Recht,  Vol.  I.,  158  seg. 

2Siegel,  Geschichte  des  deutschen  Gerichtsverfahrens,  Beilage  I.; 
Essays  in  Anglo-Saxon  Law,  191,  218,  253,  254. 

3Rogge,  Ueber  das  Gerichtswesen  der  Germanen,  §6  ;  Post,  Bausteine, 
§§148,  149  ;  Leist,  Graeco-Ital.  R.  G.,  §§9,  10  ;  same,  Rom.  Societas,  15  ; 
Post,  African  Jurisprudenz,  §§26,  27. 

4  On  the  history  of  the  societas  see  Leist,  Zur  Geschichte  der  rbmischen 
Societas. 

6  Dig.  17,  2,  7. 


124     An  Introduction  to  the  Study  of  the  Constitution. 

the  tradition  of  objects  of  value  is  involved.  In  insurance 
contracts  the  phenomena  of  fire,  water  and  death  are  assured 
against,  and  pecuniary  compensation  for  loss  is  expected. 
Here  no  language  is  adequate  to  convert  an  agent  of  an 
insurance  company  into  the  agent  of  an  insured  person.  In 
the  language  of  the  Supreme  Court  of  Illinois,  "  there  is  no 
magic  power  residing  in  the  words  of  [a]  stipulation  to  con- 
vert the  real  into  the  unreal."  x  The  objects  and  duties  con- 
templated by  agencies,  partnerships,  corporations  are  usually 
material  in  their  nature,  except  where  the  object  is  moral  or 
religious  improvement.  Partnerships  and  corporations  are 
forms  of  contract  that  involve,  as  has  been  seen,  the  physical 
aggregation  of  more  than  one  individual;  and  this  phenome- 
non of  physical  aggregation,  as  already  said  in  a  former 
chapter,  has  contributed  to  give  character  to  these  special 
forms.  Work  and  labor  largely  form  the  basis  of  contractual 
obligation,  and  the  tests  of  inefficient  work  are  most  fre- 
quently of  a  material  nature.  In  determining  the  scope  of  a 
contract  it  is  admissible  to  introduce  evidence  of  "every 
material  fact  that  will  enable  the  court  to  identify  the  person 
or  thing  mentioned  in  the  instrument,  and  to  place  the  court, 
whose  province  it  is  to  declare  the  meaning  of  the  word  of 
the  instrument,  as  near  as  may  be  in  the  situation  of  the 
parties  to  it." 2 

Contractual  capacity  depends  upon  such  physical  phe- 
nomena as  a  healthy  brain,  a  sane  mind ;  upon  sex,  as  to 
whether  the  person  be  a  wife ;  upon  age,  as  to  whether  he  be 
a  minor.  Necessity  begets  capacity  in  cases  of  minority, 
where  the  preservation  of  life  and  physical  comfort  are 
involved,  and  physical  criteria  determine  what  are  necessaries 
within  this  rule. 

In  modern  English  and  American  law  a  tort  is  "an  act  or 
omission  [not  being  merely  the  breach  of  duty  arising  out  of 

1  Commercial  Ins.  Co.  v.  Ives,  56    111.  402.     See  also  Bacon,  Benefit 
Societies  and  Life  Insurance,  §221. 
5  Elphinstone,  Rules  for  the  Interpretation  of  Deeds,  50  seq. 


Evidences  of  Physical  and  Social  Factors.  125 

a  personal  relation,  or  undertaken  by  contract]  which  is 
related  to  harm  suffered  by  a  determinate  person."1  It  may 
grow  out  of  an  act,  not  justified  by  law,  which  does  harm  to 
another  or  his  property,  or  in  failing,  when  duty  required,  to 
prevent  that  which  harms  another  or  his  property.2  In  other 
words,  action  and  inaction  entail  harmful  results  which  the 
courts  now  seek  to  rectify,  in  lieu  of  the  practice  of  self-help 
or  private  revenge,  which  might  otherwise  prevail.  The 
mode  of  redress  or  of  relief  is  by  pecuniary  fines  or  compen- 
sation. Circumstances  of  aggravation  disclosing  a  mental 
factor,  such  as  spite  or  vindictiveness,  entail  more  serious 
results,  in  the  shape  of  larger  compensation  and,  perhaps, 
imprisonment.  One  can  see  here  without  further  elaboration 
how  fundamental  are  physical  and  social  factors  in  the 
development  and  existence  of  the  law  of  torts.  Mention  has 
already  been  made  of  the  part  that  water  and  air  play  in  the 
creation  of  laws.  And  as  aggregates  of  individuals  form  in 
municipal  centers,  the  agency  of  these  elements  in  the  creation 
of  legal  regimen  expands.  This  physical  phenomenon  has 
also  been  mentioned  already.  Nuisances  are  torts  embracing 
a  wide  field,  growing  in  extent  with  the  development  of  new 
inventions  and  new  industrial  centers.  Slander  and  libel 
embrace  tortious  infractions  of  law,  which  have  been  modified 
by  the  need  of  communication  through  commercial  agencies 
respecting  the  condition  of  merchants  and  bankers.3 

The  need  of  dwelling  on  physical  and  social  factors  in  the 
creation  of  the  law  of  obligations  is  revealed  every  day  of 
our  lives.  Indeed  they  cannot  be  lost  sight  of ;  they  form 
constant  criteria.  But  they  are  apt  to  be  improperly  ignored 
in  the  creation  of  those  laws  which  tend  to  render  the 
mechanic  negligent,  under  the  protection  of  mechanic's  lien 
laws,  and  in  the  creation  of  usury  and  sumptuary  laws,  and 
laws  contemplating  a  patriarchal  regimen  on  the  part  of  the 
state.4 

1  Pollock  on  Torts,  19.  i  Ibid. 

3  Errant,  Law  of  Commercial  Agencies. 

4  See  on  this  subject  Spencer,  Man  versus  the  State. 


126     An  Introduction  to  the  Study  of  the  Constitidion. 


SECTION   IV. — IN   THE   LAW    OF   PROCEDURE. 

The  law  of  procedure  is  now  classed  as  adjective  law,1  as 
distinguished  from  rules  of  action  which  relate  to  substantive 
rights.2  But  the  classification  cannot  claim  to  be  based  on 
universally  valid  distinctions.  Courts  in  the  United  States 
have  not  hesitated  to  declare  enactments  of  legislative  bodies 
unconstitutional  where  they  seriously  interfered  with  remedies 
previously  existing,3  claiming  that  they  impaired  the  sub- 
stantial obligations  of  contracts,  or  tended  to  deprive  persons 
of  their  vested  rights.  Adjective  law,  in  virtue  of  the  use 
of  that  term,  would  seem,  according  to  modern  conception, 
to  occupy  a  subordinate  place.4  And  yet  in  early  days  it  was 
notoriously  otherwise.  So  great  is  the  ascendancy  of  the  law 
of  actions  in  the  infancy  of  courts  of  justice,  that  substan- 
tive law  has  at  first  the  look  of  being  gradually  secreted  in 
the  interstices  of  procedure ;  and  the  early  lawyers  can  only 
see  the  law  through  the  envelope  of  its  technical  forms.5 
The  earliest  known  codes  give  the  first,  if  not  the  predomi- 
nant, place  to  the  modes  or  methods  of  bringing  parties  into 
court.6  And  Sir  Henry  Maine  contends  that  the  authority 
of  the  court  of  justice  overshadowed  all  other  ideas  and  con- 
siderations in  the  minds  of  early  code-makers.7     And  that 

1  Holland,  Elements  of  Jurisprudence,  Chap.  XV.;  Austin,  Jurispru- 
dence, §§853,  1032,  1034  ;  Amos,  Science  of  Jurisprudence,  283. 
12  See  the  authorities  cited  in  the  preceding  note. 

3  See,  however,  Austin  and  Amos,  supra.  Remedies  Lave  at  times 
been  invested  by  courts  with  the  character  of  property.  (See  Hare, 
American  Constitutional  Law,  Vol.  II.,  Lectures  37,  38.)  And  courts 
have  given  decisions  the  character  of  legislation.  Gelpche  v.  Dubuque, 
1  Wallace,  175,  206 ;  Havemeyer  v.  Iowa  Co.,  3  Wallace,  294  ;  Olcott  v. 
Supervisors,  etc.,  16  Wallace,  678  ;  Harris  v.  Jex,  55  N.  Y.  421. 

4  Maine,  Early  Law  and  Custom,  389. 
Ubid. 

'Id.  366  seq. ;  Hammond,  Introduction  to  Sanders'  Justinian ;  and  see 
authorities  infra. 
'Early  Law  and  Custom,  383  seq.;  Ancient  Law,  4. 


Evidences  of  Physical  and  Social  Factors.  127 

view  is  the  prevalent  one.1  This  authority  was  attributable 
to  a  disposition  that  grew  up  to  settle  disputes  by  other 
means  than  self-help2 — a  disposition  necessitated  by  the 
superior  power  or  prowess  of  the  offender  and  his  associates, 
and  facilitated  by  that  pressure  which  an  aggregate  mass  of 
human  beings  may  exercise  upon  an  arbitrary  and  offending 
leader  or  leaders  of  the  mass.3  It  would  be  contributed  to 
by  the  desire  of  chiefs  to  make  control  over  the  tribe  or 
tribes  easier,4  and  it  would  be  an  outcome  of  military  and 
priestly  regimen  seeking  to  obtain  control  over  the  discordant 
elements  of  the  mass.5 

Self-help  is  the  first,  as  it  is  the  most  natural,  form  of 
redress  known  to  beings  who  have  made  no  self-conscious 
strides  in  social  regimen.  It  is  a  form  of  redress  known  to 
animals,  and  is  likely  to  continue  long  after  social  factors 

1  "  Der  Process  selbst  gehort  zu  den  friihst  entwickelten  Rechtsinstitu- 
tiouen.  Zu  einer  Zeit,  da  die  materiellen  Rechtsbegriffe  erst  in  sehr 
schwachen  Urnrissen  fur  uns  sichtbar  werden,  begegnet  uns  der  Process 
bereits  in  ausgebildeter  und  priicisirter  Gestalt  und  bildet  einen  der 
altesten  Gegenstiinde  der  Gesetzgebung."  Ihering,  Geist  des  romischen 
Rechts,  dritter  Theil,  §50,  p.  17;  Clark,  Practical  Jurisprudence,  21,  42 
seq.;  Pollock,  Torts,  21;  Woolsey,  Political  Science,  Vol.  II.,  §230; 
Spencer,  Principles  of  Sociology,  §522;  Leist,  Graeco-Ital.  R.  G.,  Book 
I.,  Chap.  III.,  §22,  pp.  133-30  ;  also  §§65,  66. 

2Siegel,  Geschichte  des  deutschen  Gerichtsverfahrens,  §§1-8;  Leist, 
Graeco-Ital.  R.  G.,  §46.     Also  Book  III.,  Chap.  II. 

3Siegel,  supra,  §1. 

4Siegel,  supra.  Leist  attributes  a  good  deal  to  the  Erinyes,  the  anger 
of  the  slain  and  its  appeasement,  in  achieving  a  social  control  over 
remedial  procedure.  See  preceding  reference  in  notes  1  and  2.  But 
quere  whether  the  process  of  growth  was  not  at  first  the  reverse  of  what 
Leist  imagines.     See  also  Coulanges,  next  note. 

6 Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Chap.  XIII.  De 
Coulanges  thinks  that  the  priestly  influence  was  permanent  and  was  im- 
bedded in  that  worship  of  ancestors  upon  which  ancient  society  was 
founded.  Ancient  City,  Book  III.,  Chap.  XI.  He  says:  "Law  and 
religion  were  but  one  ...  no  man  invented  them."  The  laws  "  presented 
themselves  without  being  sought."  "  They  were  the  direct  and  neces- 
sary consequences  of  belief ;  they  were  religion  itself  applied  to  the 
relations  of  men  among  themselves."  See  also  Leist,  Graeco-Ital.  R.  G., 
Book  II.,  Chap.  III.,  and  Book  III.,  Chaps.  I.  and  II. 


128     An  Introduction  to  the  Study  oj  the  Constitution. 

have  replaced  it  in  developing  details  with  social  forms  of 
redress.  Just  as  the  art  of  naming  may  be  practiced  without 
a  self-conscious  realization  of  the  relation  between  the  human 
being  and  the  objects  he  surveys/  as  this  may  grow  upon 
him  by  slow  increment  of  experience,  so  may  the  impulse  to 
self-help  long  exist  and  develop  before  any  self-conscious 
formulation  of  meum  and  tuum  or  remedial  right  exists. 
Self-help  is  a  product  of  that  inherent  self-preservative 
impulse  which  induces  the  animal  to  defend  its  own  existence ; 
it  is  a  form  of  it,  broadening,  under  gregarious  influences, 
the  feeling  of  self-preservation ;  and  its  development  goes 
on  in  social  life,  so  that  eventually  the  notion  of  self-preser- 
vation may  embrace  the  preservation  of  self  and  kindred 
and  much  of  that  with  which  the  self  has  surrounded  itself. 
Therefore,2  in  our  very  modern  law,  a  man  may  under  certain 
circumstances  slay  another  in  defense  of  his  family,  his 
house  and  household  goods.3 

There  are  law-writers  who  contend  that  the  notion  of  right 
is  innate  to  the  earliest  being,4  upon  the  same  principle  that 
the   ethical    philosopher   claims  the   same   thing.3     Such   a 

1  As  to  which  see  Romanes,  Mental  Evolution  in  Man,  Chapters  V.  to 
IX.  inclusive. 

*Cf.  Bishop,  Crim.  Law,  Vol.  I.,  Chap.  LVL,  for  further  instances. 
Holland,  Elements  of  Jurisprudence,  215,  where  he  states  that  a  new 
right  may  be  realizable  by  the  regulated  self-help  of  the  injured  person, 
as  when  he  is  allowed  to  push  a  trespasser  out  of  his  field,  or  to  pull  down 
a  wall  which  has  been  built  iu  his  path.  Ibid.  165,  272.  Nations  exer- 
cise the  right  of  self-help,  such  as  reprisal.  The  notion  of  the  sanctity  of 
the  house  is  found  at  an  early  stage  of  political  life.  Leist,  Graeco-Ital. 
R.  G.,  §38,  p.  247.     Hearn,  Aryan  Household,  p.  222. 

3Cf.  preceding  note. 

4  Ihering,  Geist  des  romischen  Rechts,  Vol.  I.,  ?X.;  Kant,  Philosophy 
of  Law;  Fichte,  Science  of  Rights  ;  Stirling,  Lectures  on  the  Philosophy 
of  Law  ;  Miller,  Lectures  on  the  Philosophy  of  Law,  Lect.  I. 

5 Cf.  Lecky,  History  of  European  Morals,  Vol.  I.,  Chap.  I.;  Porter, 
Human  Intellect;  Green,  Prolegomena  to  Ethics;  Martineau,  Types  of 
Ethical  Theory,  Vol.  II.;  Courtney,  Constructive  Ethics;  Kant,  Kritic 
der  practischen  Vernunft ;  Fichte,  Science  of  Thought.  But  see  contra, 
Leslie  Stephen,  Science  of  Ethics;  Spencer,  Data  of  Ethics;  Sidgwick, 
Method  of  Ethics  ;  Fowler,  Principles  of  Morals,  Vol.  II. ;  Bain,  Moral 


Evidences  of  Physical  and  Social  Factors.  129 

notion,  however,  loses  sight  of  the  fact  that  law,  like  knowl- 
edge, progresses  by  a  gradually  extending  synthesis.1  A 
Scotch  jural  philosopher,  who  is  Kantian  in  his  belief,  in 
speaking  of  the  relation  of  the  individual  to  the  universe, 
combats  such  a  notion  as  the  innateness  of  legal  right  when 
he  says  :  "  In  the  age  of  infancy  [man]  is  subject  to  physical 
law.  His  obedience  to  custom  is  almost  a  nervous  involun- 
tary reaction."2  And  as  the  views  of  the  evolutionist  may 
be  reconciled  with  those  of  the  intuitionist,  in  ethics,  by 
predicating  of  mind  a  capacity  for  developing  in  the  course 
of  ages,  and  social  historical  continuity,  under  favorable  con- 
ditions, a  comprehensive  and  deep  moral  sense  or  sentiment, 
so  may  these  views  be  reconciled  with  mine  in  assuming  the 
eventual  rise  of  a  disposition  to  observe  jural  rules  of  action. 
A  condition  of  human  kind  in  which  self-help  is  the  sole 
form  of  redress  must  be  coequal  to  that  of  the  brute.  May 
the  group  be  of  a  peaceful  disposition  or  otherwise,  self-help 
for  a  deprivation  of  what  the  individual  possesses,  whether 
life,  freedom  or  objects,  must,  if  the  sole  remedy,  lead  to 
anarchy — anarchy  in  which  the  law  of  survival  decides  in 
favor  of  the  most  powerful.  In  the  earliest  known  form  of 
political  society  self-help  has  in  a  measure  become  superseded 
by  more  orderly  modes  of  redress.  Since  self-help  depends 
upon  the  ability  and  inclination  of  the  wronged  one  to  obtain 
redress,  and  the  strength  of  his  following,  a  form  of  compen- 
sation, by  way  of  arbitrament,  voluntarily  resorted  to  or 
coerced  by  the  chief  of  the  whole  clan  or  tribe,  would  be 
instrumental  in  establishing  a  primitive  form  of  ordered 
remedial  procedure.  Another  step  would  be  when  self-help, 
though  still  permitted,  is  supervised  and  restrained  by  a  more 
effective  authority.    The  ultimate  course  of  developing  social 

Science  ;  Maudsley,  Physiology  and  Pathology  of  the  Mind  ;  same,  Body 
and  Will ;  G.  II.  Lewes,  Study  of  Psychology  ;  same,  Physical  Basis  of 
Mind;  Bain,  Senses  and  the  Intellect;  same,  Emotions  and  the  Will; 
Ribot,  Diseases  of  Memory  ;  same,  Diseases  of  the  Will ;  Luys,  The  Brain. 

1  Miller,  Philosophy  of  Law,  43. 

"Ibid.,  367. 


130     An  Introduction  to  the  Study  of  the  Constitution. 

organization  has  been  to  narrow  the  license  of  the  individual 
in  favor  of  social  powers  and  rights ;  to  narrow  the  right  of 
self-help  in  favor  of  an  orderly  course  of  remedial  procedure 
in  courts.  Military  discipline,  in  the  rudest  political  groups, 
makes  for  such  a  form  of  discipline.1  If  we  look  to  savage 
tribes  we  see  justice  administered  in  a  primitive  gathering  of 
armed  men  which  is  at  once  a  council  of  war,  a  rude  politi- 
cal assembly,  and  a  judicial  body.  Among  the  Hottentots 
the  whole  kraal  with  the  chief  sit  in  the  open  fields  in  a 
circle;  all  matters  are  determined  by  a  majority.  If  the  cul- 
prit is  convicted,  and  he  is  adjudged  guilty  of  death,  sentence 
is  executed  on  the  spot.  The  chief  is  the  first  executioner,  he 
striking  the  first  blow,  and  is  followed  by  the  others.  Such 
a  form  of  administering  justice  is  to  be  found,  with  variations 
of  detail,  among  many  tribes.  Relics  of  it  are  found  among 
the  Greeks  in  Homeric  days,  where  justice  was  administered 
in  the  midst  of  the  assembled  agora.  Among  the  tribes  of 
Europe  justice  was  administered  by  the  whole  tribe,  in  the 
open  air,  and  relics  of  their  administration  continued  until 
the  ramified  control  peculiar  to  national  development  grad- 
ually superseded  it. 

AVhen  the  impulses  of  self-preservation,  including  the 
defense  of  sustenance,  mates  and  sometimes  progeny,  came 
into  collision  with  the  needs  or  corporate  feeling  of  the  aggre- 
gate into  which  the  individual  existence  of  the  members  of 
the  tribe  or  herd  was  merged,  it  necessarily  yielded  to  the 
latter.  And  in  this  way  a  corporate  form  of  redress  would 
come  to  supersede  in  a  measure  the  more  animal  and  unreas- 
oning mode  of  redress  by  private  vengeance  or  caption. 
The  forms  in  which  the  corporate  control  took  shape  varied 
perhaps  in  details.  It  would  not,  if  aroused  to  action, 
tolerate  a  breach  of  those  forms  of  enjoyment  and  possession 

1  That  this  was  the  case  among  the  earliest  Greeks  and  Italians  see 
Leist,  Graeco-Ital.  R.  G.,  §43  seq.;  among  the  early  Germans,  Siegel, 
Geschichte  des  deutschen  Gerichtsverfahrens,  passim  ;  Essays  in  Anglo- 
Saxon  Law,  183  seq.;  and  among  Semitic  peoples,  Smith,  Religion  of 
he  Semites,  397-400. 


Evidences  of  Physical  and  Social  Factors.  131 

that  had  become  invested  with  customary  incidents  of  long 
standing.  The  tribe  would  endeavor  to  maintain  its  own 
integrity  by  resisting  pressure  from  without,  and  by  setting 
beyond  the  pale  of  its  protection  members  who  fled  or 
resisted  it.  A  military  regimen  begot  subordination  and 
discipline,  under  some  head  or  chief;  the  needs  of  a  military 
life  would  supersede  individual  claims.  The  expansion  of 
groups  that  became  possible  with  enlarged  military  needs 
and  experience  occasioned  a  limitation  of  individual  license, 
so  that  the  unregulated  and  anarchic  mode  of  redress  by  self- 
help  became  more  and  more  superseded  by  the  larger  disci- 
pline of  the  social  body,  however  rude  or  immature,  in  which 
the  individual  was  merged.  The  belief  in  ghosts  or  spirits 
of  departed  heroes  (later  also  domestic  manes)  tended,  in  con- 
junction with  the  peculiar  fancy  which  infantile  minds 
disclose,  to  create  a  faith  that  enabled  the  leader  or  leaders 
of  tribes  or  lesser  groups  to  invest  with  a  kind  of  sacredness 
such  control  and  administration  as  there  was. 

In  any  event,  early  in  the  career  of  mankind  that  which 
the  early  being  is  found  to  hold  in  awe  is  the  court  or 
tribunal  which  exercises  dominion  over  the  affairs  of  his 
social  life  and  duties.  And  death  is  for  the  most  part  a 
penalty  which  he  recognizes  and  accepts  for  disobedience. 
And  though  it  does  not  occur  at  first,  yet,  after  a  while,  the 
arbitrary  reprisal  whereby  is  sought  to  be  recovered  the  thing 
taken  away,  yields  to  the  social  penalty  for  thievery  and 
desecration  of  the  family  group,  or,  as  discipline  becomes 
more  effectual,  to  compensation  by  way  of  penalty  or  satis- 
faction. 

In  the  days  of  Charlemagne,  when  the  less  organized  tribal 
groups  were  more  or  less  controlled  by  a  national  form  of 
administration,  and  the  perdurable  process  of  merger  into  a 
larger  national  unity  had  begun,  governmental  control  through 
courts  had  superseded  self-help  in  many  matters.  It  is  true 
that  the  administration  of  justice  was  still  ineffective  and 
unorganized,  and  that  self-help  still  largely  prevailed.     Yet 


132     An  Introduction  to  the  Study  of  the  Constitution. 

there  were  local  gatherings  for  purposes  of  administering 
justice  of  the  different  segregated  groups,  and  even  larger 
meetings  embracing  wider  areas;  also  there  was  a  royal  or 
kingly  control ;  all  of  which  contributed  to  substitute  the 
king's  peace  for  the  tribe's  peace,  and  governmental  relief 
either  by  capital  punishment,  compensation  in  the  shape  of 
weregeid  or  in  other  forms,  or  restitution  of  property  or  its 
equivalent,  for  self-help.1 

The  organization  of  a  central  administrative  body  tended 
eventually  over  a  greater  or  less  stretch  of  territory,  every- 
where where  it  came  to  pass,  to  supersede  the  rough-and- 
ready  forms  of  redress  of  the  nomad,  or  the  better  regulated 
modes  of  procedure  of  herdsmen  and  primitive  husbandmen. 
The  exorcisers  of  spirits,  the  priests,  are  the  most  influential 
framers  of  regulated  modes  of  procedure,  as  they  are  the 
reformers  of  unregulated  language  and  the  promoters  of  such 
limited  arts  as  there  may  be  in  the  early  stages  of  man's 
progress.  These  intermediaries  between  the  gross  idolaters 
among  early  mankind  and  the  supernatural,  obtain  a  control 
over  the  primitive  mind  which  goes  as  far  as  the  power  of 
any  chieftain  may  aspire  to,  and  through  them  the  court  or 
tribunal  may  become  respected  and  followed;  but  the  tribunal 
itself  was  a  thing  of  slow  and  painful  and  erratic  growth, 
only  emerging  into  light  as  it  was  forced  into  prominence  by 
military  growth  or  by  pressing  pastoral  or  agricultural 
interests,  or  as  it  was  called  into  existence  and  a  larger  life 
by  the  expansion  of  the  family  group  and  the  extension  of 
the  patria  potestas.  Simultaneously  with  such  a  growth  was 
the  expansion  in  numbers  of  household  gods,  and  gods  of 
the  larger  unity — which  larger  unity,  though  based  on  house- 
holds, likewise  promoted  their  growth ;  and  this  unification 
eventuated  in  a  pontifical  extension  over  the  priestly  and, 

1 A  similar  development,  with  of  course  differences  of  details,  is  notice- 
able among  the  ancient  Greeks  and  Italians.  Leist,  Graeco-Ital.  R.  G., 
§43  seq.  And  among  African  tribes,  so  far  as  relates  to  the  earlier  stages, 
Post,  African  Jurisprudenz,  Vol.  2,  Parts  VI.  and  VII.  See  also  Pollock, 
Essays,  "The  King's  Peace." 


Evidences  of  Physical  and  Social  Factors.  133 

through  the  priests,  over  the  judicial  affairs  of  that  unity.  A 
quite  similar  expansion  of  court  procedure  is  traceable  in 
ancient  Greece  and  in  medieval  Europe  through  the  pontifical 
class.1  It  produced  a  casuistical  system  which  facilitated 
governmental  control ;  but  it  was  in  conflict  with  those 
customs  of  the  people  which  their  pursuits  from  time  im- 
memorial had  been  creating  and  building  up,  whether  in  the 
closer  and  larger  corporate  aggregate,  or  among  the  more 
diffused  non-urban  population.  On  this  account  the  system 
of  procedure  occupies  a  lesser  place  in  the  development  of 
jurisprudence  than  do  the  expanding  rules  of  substantive 
law — substantive  law  which  stands  for  legal  conduct  as  dis- 
tinguished from  merely  moral  conduct.  While  procedure 
was  among  the  most  noteworthy  contributing  agencies  of  law, 
especially  in  the  days  when  substantive  law  was  recognized 
most  definitely  in  connection  Math  the  disposition  to  obtain 
redress — to  effectuate  the  feelings  incidental  to  use,  enjoyment 
and  possession,  and  the  rupture  of  those  feelings  by  depriva- 
tion— it  ceased  to  play  the  like  conspicuous  part  as  societies 
grew  to  civilization  and  maturity.  Eventually  the  rules  of 
mine  and  thine  obtained  a  force  and  recognition  by  usage 
and  habit  and  example,  as  ethical  rules  do. 

Even  more  decidedly,  because  they  builded  on  data  that 
touched  the  needs  and  interests  of  mankind  more — upon  a 
scale  which  the  somewhat  sterile  forms  of  procedure  could 
not  be  expected  to  obtain.  And  when  these  substantive 
rules  and  customs  became  displaced  by  the  casuistical  con- 
ceptions of  priestly  inventors,  the  rules  and  forms  of  procedure 
were  rendered  even  less  prolific  of  change  and  increment 
than  before.  The  substantive  law,  embracing  thereunder  the 
remedial  rights  (save  the  forms  of  procedure)  which  one  is 
entitled  to,  covers  a  much  wider  field  in  jurisprudence  than 
mere  procedure. 

However  complex  and  scholastic  in  form  the  procedure 

'C/.  Keller,  Rora.  Process;  Year  Books  of  32  and  33  Edw.  I.,  edited 
by  Alf.  J.  Ilarwood,  Preface  xi.,seq.;  Leist,  Graeco-Ital.  R.G.,  Book  II., 
Chap.  III.,  Book  III.,  Chap.  II. 


134     An  Introduction  to  the  Study  of  the  Constitution. 

might  become,  judging  by  the  history  of  Roman  and  English 
jurisprudence,  it  was  bound  to  yield  to  practical   life  and 
movement,  one  of  the  principal  effects  of  which  has  been  to 
counteract   and   destroy  the   artificial   and   formal,   though 
astute,  creations  of  casuistical  thinkers  and  believers.     In- 
dustrial activity  in  commerce,  in  husbandry,  in  obtaining 
the  means  of  subsistence  and  wealth,  has  driven  the  tribunals 
of  the  land  to  recognize  the  validity  of  arbitration  tribunals 
which  before  were  not  accorded  the  same  recognition  ;  it  gave 
a  place  and  power  to  the  jury,  especially  under  Lord  Mans- 
field, which  radically  enlarged  the  influence  of  mercantile 
customs  ;  it  induced  the  eventual  abandonment  of  the  artificial 
creations  of  the  past,  for  a  more  simple  and  practical  system 
of  procedure.     It  is  revolutionizing  the  work  of  the  lawyers 
in  the  pursuit  of  redress.     It  has  operated  to  ameliorate  the 
law  of  imprisonment  for  debt,  the  law  relating  to  married 
women,  the  law  relating  to  exempt  property,  so  that  now,  at 
least  in  the  United  States,  the  largest  function  of  the  lawyer 
consists  in  making  judgments  productive.     Industrial  life 
has  tended  to  enlarge  the  recourse  to  attachments,  creditors' 
bills,  injunctions,  receivers.     When  railroad  properties  are 
involved,  the  functions  of  courts  have  been  carried  so  far  as 
to  involve  the  issuance  of  receivers'  certificates  in  large  sums 
for  construction  and  other  purposes.     The  doctrine  of  courts 
that  their  receivers  cannot  be  interfered  with  by  other  courts 
found  vigorous  opposition,  as  the  danger  to  practical  interests 
thus  entailed  became  conspicuous,1  until  Congress  intervened 
by  positive  enactment  and  provided  a  remedy.2   The  appoint- 
ment of  receivers  of  railroads  leading  to  the  evil  that  large 
masses  of  meritorious  claimants  were  inequitably  deprived  of 
large  rights,  produced  an  exceptional  doctrine  in  favor  of 
such  claimants,3  that  seems  to  have  departed  from  previous 
doctrines  preservative  of  the  rights  of  mortgagees. 

'See  Dow  v.  M.  &  L.  R.  R.  R.,  20  Fed.  Rep.  2G6 ;  Am.  Law  Review, 
Vol.  XIX.,  400  seq. 
3  Acts  of  1888  (50th  Congress),  Chap.  866,  Sees.  2,  3. 
3  American  Law  Review,  Vol.  XIX.,  400  seq. 


Evidences  of  Physical  and  Social  Factors.  135 

The  passion  for  recovery  of  things  of  value  which  under- 
lies procedure  and  sustains  it,  though  it  forced  adjective  law 
into  new  and  more  serviceable  forms,  did  not  prevent  the 
tendency  toward  the  casuistical  expansion  of  those  forms  and 
incidental  doctrines  which  eventuated  in  another  and  not  less 
elaborate  system  of  unfamiliar  detail  to  the  layman  than  before. 
The  tendency  to  multiplication  of  forms  is  manifest  as  well 
in  legislative  rules1  as  in  court  and  church  service.  The 
development  of  forms  necessarily  ensues  where  a  profession 
exists  to  apply  them ;  necessarily  exists,  too,  because  the  pro- 
motion of  order  and  discipline  in  remedial  justice  requires 
forms.  The  utility  of  forms  of  procedure  in  the  growth  of 
law  is  affirmed  by  Ihering  to  be  conspicuously  illustrated 
in  Roman  jurisprudence,  and  he  asserts  that  it  lost  its 
scientific  character  as  the  slow  changes  inaugurated  by  the 
courts  and  lawyers  in  Home  were  superseded  by  the  naturally 
too  radical  legislation  of  reformers.'  Yet  it  is  noteworthy 
that  despite  Ihering's  assertion,  legislation  has  increased  in 
volume  and  has  become  indispensable  to  make  German 
remedial  law  conform  less  to  Roman  standards  and  more  to 
the  needs  of  German  communities.  The  forms  are  the  sub- 
ordinate part  of  remedial  law;  the  principles  which  underlie 
these  forms  are  of  primary  importance — that  is,  a  qualified 
tribunal,  a  fair  examination,  a  speedy  trial,  a  proper  appli- 
cation of  the  rules  of  substantive  law,  and  the  enforcement 
of  the  judgment  of  the  court  as  far  as  practicable — principles, 
in  short,  calculated  to  satisfy,  as  far  as  legitimate  and  prac- 
ticable, the  passion  for  recovery  of  things  of  value. 

The  law  of  evidence  is  the  creature  of  experience  rather 
than  logic,3  and  in  studying  the  history  of  it  one  cannot 
escape  the  necessity  of  tracing  that  experience.4     Evidence  is 

See  Woodrow  Wilson,  Congressional  Government. 

2Geist  des  romischen  Rechts,  §48  seq. 

3That  formal  logic  is  untrustworthy  as  a  working  system  for  affairs  of 
experience,  see  Sedgwick,  Fallacies ;  Spencer,  Principles  of  Psychology, 
Vol.  II.,  Part  VI.,  especially  Chap.  VIII.;  also  Part  VIII.,  Chap.  III. 

4  James  B.  Thayer,  Presumption  and  the  Law  of  Evidence,  Harvard 
Law  Review,  Vol.  III.,  146. 


136     An  Introduction  to  the  Study  of  the  Constitution. 

any  matter  of  fact  which  is  furnished  to  a  legal  tribunal 
otherwise  than  by  reasoning,  as  the  basis  of  influence  in 
ascertaining  some  other  matter  of  fact.  There  is  no  law  of 
reasoning  other  than  what  is  found  in  the  "  laws  of  thought."1 
We  have,  in  our  inherited  system  of  municipal  laws,  what  is 
peculiar  to  English-speaking  people — a  law  of  evidence.  In 
its  main  features  it  is  unknown  upon  the  continent  of  Europe. 
It  developed  in  England  because  they  had  the  jury  in  Eng- 
land, or  rather  because  in  England  they  did  not  give  up  the 
jury.  On  the  Continent  they  had  the  jury  seven  and  eight 
hundred  years  ago,  but  they  lost  it.2  Evidence  of  intention 
not  culminating  in  acts  is  of  no  value.  Physical  phenomena 
form  the  groundwork  of  evidential  values  in  courts  of  law — 
i.  e.  matters  of  fact. 

The  judges  of  courts  and  the  other  constituent  parts  of 
judicial  tribunals  likewise  reflect  the  growth  of  society. 
They  have  come  to  take  a  co-ordinate  place  in  the  body 
politic  alongside  of  the  legislative  and  executive  depart- 
ments of  government.  Originally  they  formed  a  part  of 
the  legislative  and  executive  body.  The  earliest  judge  is  a 
priest  or  a  head  man  of  a  given  tribe.  He  is  not  the  exponent 
or  interpreter  of  enactments,  but  he  enforces  the  customs 
which  the  life  of  his  and  the  tribe's  surroundings  has  made 
possible.  When  a  country  becomes  peopled  with  various 
groups  following  war,  herding  or  husbandry,  the  chief  and 
priest  become  separated.  The  one  takes  up  war  and  govern- 
ment as  a  pastime,  the  other  takes  up  the  spiritual  functions. 
But  the  rules  of  spiritual  welfare  become  an  ameliorating 
influence  which  adds  to  and  colors  the  other  practical  usages. 
The  warrior  chief  and  his  associates  summon  him  to  decide 
the  issues  of  mcum  and  tuum,  where  the  more  arbitrary  will  of 
a  despotic  mind  is  restrained  from  forcible  caption  or  seizure. 
And  in  time,  as  the  communities  cement  together  by  the 
construction  of  roads,  intercourse,  traffic,  and  spread  of  more 
enlightened  and  cosmopolitan  usages,  the  warrior  chief  be- 

1  Spencer,  Psychology,  ubi  supra.  2  Thayer,  ubi  supra. 


Evidences  of  Physical  and  Social  Factors.  137 

comes  a  nation's  king,  his  council  becomes  a  legislative  and 
executive  body,  and  the  judicial  body  obtains  a  place  apart. 
The  priests  monopolize  the  functions  of  judges,  until  the 
practical  needs  of  the  political  unit  become  antagonistic  to 
the  purely  theoretical,  casuistical  and  spiritual  ideas  and 
forms  of  thinking  of  priestcraft.  The  courts  obtain  their 
modern  form  more  and  more  as  they  yield  to  the  demands 
for  practical  enforcement  of  rights  and  duties — rights  and 
duties  as  they  have  become  recognized  in  the  industrial  and 
commercial  world;  meaning  by  that  world  also  all  those 
forms  of  domestic  relationship  and  incidental  rights  and 
duties  which  continued  to  exist.  In  this  development  the 
jury,  grand-jury,  the  constable,  sheriff,  bailiff,  marshal,  chan- 
cellor, as  well  as  the  judge  or  justiciar  or  arbitrator,  have 
played  a  part,  and  each  has  a  history  of  its  own.  They  all 
begin  their  career  back  in  the  days  of  tribal  life,  except  per- 
haps the  chancellor,  whose  earliest  functions  were  those  of 
scribe  and  who  was  of  priestly  cast.1  Earliest  tribes  had  no 
scribe. 

The  maxims  of  judicial  administration,  such  as  that  judges 
shall  be  unbiased  and  not  related  to  the  parties,  and  that 
justice  shall  be  freely  and  fairly  administered  without  fear, 
favor  or  affection,  had  no  place  in  tribal  life.2  These  repre- 
sent the  final  verdict  of  developing  society,  brought  about 
by  painful  experience.  The  jury,  now  selected  because  of 
their  unfamiliarity  with  the  facts,  are  still  selected  from  the 
vicinage,  thus  testifying  to  their  original  function  of  neigh- 
bors, lookers-on  and  witnesses.     They  are  still  selected  for 

'Stubbs,  Cons.  Hist,  of  England,  Vol.  I.,  par.  121;  Waitz,  Deutsche 
Verf.  Gescbichte,  Vol.  II.,  pp.  409,  410,  411  seg.;  Gneist,  Hist.  Eng- 
lish Constitution,  Vol.  I.,  267,  268  and  notes  ;  Kerly,  History  of  Equity, 
Chap.  II.     See  further  on  this  subject  the  next  succeeding  chapter. 

2  A  glance  at  Hesiod,  "Works  and  Days  (see  Ancient  Classics  for  English 
Readers,  367),  will  show  the  causes  for  complaint  on  this  score  in  his  day. 
See  also  Aristotle,  Politics,  Book  VI.,  Chap.  V. ;  Felix,  Einfiuss  derSitten 
u.  Gebriiuche,  etc.,  pp.  31,  47,  110  ;  Tacitus,  Annales,  II.,  34  ;  IV.,  31 ; 
XIV.,  28. 


138     An  Introduction  to  the  Study  of  the  Constitution. 

their  neighborly  feelings  in  the  hope,  very  frequently  realized, 
that  thus  the  rigid  and  orderly  rule  of  the  law  may  be  evaded 
and  nullified.  Judges  too  are  not  always  true  to  the  maxims 
thus  enunciated;  and  a  too  comprehensive  exercise  of  the 
franchise  threatens  to  make  judges  who  are  too  subservient 
to  the  popular  voice. 

The  course  of  judicial  administration  has  on  this  account 
been  marked  by  eccentric  growths  and  contradictory  classifi- 
cations. At  no  time  in  its  history  has  the  bar  been  able  at 
all  times  to  predict  a  certain  result  in  mooted  cases.  The 
character  of  the  judge  plays  a  significant  part  in  the  practical 
administration"  of  justice.  Much  depends  upon  his  sympa- 
thies, his  familiarity  with  needs  and  abuses,  and  upon  his 
mental  range.  .  Such  men  as  Papinian,  Hardwicke,  Mans- 
field and  Marshall  make  an  epoch  by  the  superiority  of  their 
mental  reach  and  judicial  prescience.1 

1  The  application  of  substantive  law  by  courts  is  shown  in  the  philosophy 
of  the  doctrine  of  precedent,  upon  which  subject  something  has  been  said 
in  the  first  chapter  of  this  work. 


CHAPTER  IV. 

THE  EVIDENCES  OF  PHYSICAL  AND  SOCIAL  FACTORS  IN 
CONSTITUTIONAL  LAW. 

The  patriotic  inhabitant  of  the  United  States  who  imagines 
that  constitutional  history  is  strictly  applicable  alone  to  his 
country,  lives  in  ignorance  of  the  claims  of  writers  of  other 
countries  who  have  shown  its  application  there.  And  it  is 
in  disregard  of  this  circumstance  that  the  lawyer  in  the 
United  States  so  frequently  views  the  constitution  of  the 
Federal  Government  as  he  would  a  charter.1 

Constitutions,  like  laws,  it  is  said  "are  not  made,  they 
grow."2  Modern  writers  on  the  history  of  constitutions, 
whether  of  Germany  or  France  or  England,  trace  up  the 
ultimate  institutions  and  organic  political  organization  of 
their  respective  countries  from  the  establishment  of  the  first 
settlements ;  as  far  as  practicable  from  the  earliest  period. 

They  embrace  in  their  inquiry  not  only  the  growth  of 
imperial  rule  and  legislative  power,  but  they  likewise  embrace 
within  the  field  of  inquiry  the  development  of  the  early 
barbarian  and  the  succeeding  village  groups,  towns,  cities, 
elasses,  orders.  They  reveal  the  gradual  process  of  expan- 
sion and  change  so  far  as  it  bore  upon  the  unfolding  of 
primitive  local  groupings  into  large  territorial  aggregates,  as 

1  Von  Hoist,  Constitutional  nistory  of  theU.  S.,  Vol.  I.,  64-70  ;  Hannis 
Taylor,  Origin  and  Growth  of  the  English  Constitution,  Vol.  I.,  60.  But 
see  as  to  this  the  next  chapter. 

2  Sir  James  Mackintosh.  See  nannis  Taylor,  Origin  and  Growth  of  the 
English  Constitution,  Vol.  I.,  60.  That  this  is  applicable  to  the  constitu- 
tion of  the  United  States,  see,  besides  what  follows,  Bryce,  American 
Commonwealth,  Vol.  I.,  Chap.  XXXI.;  Bliss,  Sovereignty,  179  ;  Texas  v. 
White,  7  Wall.  700;  Miller,  Constitution,  pp.  104,  105,  106;  Chapter 
I.,  ante ;  Chase,  J.  in  re  Ware  v.  Hylton,  3  Dallas,  232. 


140     An  Introduction  to  the  Study  of  the  Constitution. 

preserved  and  maintained  by  an  elaborate  system  of  govern- 
ment.1 And,  following  in  their  train,  will  be  found  writers 
upon  the  history  of  American  constitutions  who  have  pur- 
sued a  similar  course.2  Just  as  a  proper  understanding  of 
language  takes  note  of  the  earliest  roots  from  which  language 
grew,  so  should  a  proper  understanding  of  the  history  of 
constitutions  depend  upon  a  knowledge  of  the  details  of 
growth  of  local  subdivisions  of  the  country ;  for  these  helped 
to  create  it. 

Constitutions  are  not  all  written,  nor  are  they  all  of 
modern  date,  for  we  learn  of  a  Mosaic  Constitution,  a  Per- 
sian Constitution,  an  Egyptian  Constitution,  a  Lycurgan 
Constitution,  a  Solonian  Constitution,  a  Roman  Constitu- 
tion.3    A  constitution  could  hardly  exist  among  a  community 

1  Waitz,  Deutsche  Verfassungsgeschichte ;  Maurer,  Mark-,  Hof-,  Dorf- 
und  Stadt-Verfassung  ;  Schwebel,  Deutsches  Biirgerthum ;  Arnold, 
Deutsche  Freistiidte;  same,  Geschichte  des  Eigenthums  in  deutsehen 
Stadten;  Heusler,  Ursprung  deutscher  Stadtverfassung;  Stubbs,  Con- 
stitutional History  of  England ;  Gneist,  Constitutional  History  of 
England;  Freeman,  Growth  of  the  English  Constitution  ;  Maine,  Early 
Law  and  Custom,  and  Early  History  of  Institutions;  Green,  Making  of 
England,  and  Norman  Conquest;  Freeman,  Norman  Conquest;  Biener, 
Das  englische  Geschwornen-Gericht ;  Siegel,  Geschichte  des  deutsehen 
Gerichts-Verfahrens;  Freeman,  English  Towns  and  Districts;  Stephen, 
Hist,  of  Criminal  Law  in  England  ;  Stubbs,  Select  Charters,  etc. ;  Kitchen, 
Court  Leet  and  Court  Baron ;  Scruggs,  Practice  of  Courts  Leet ;  Laveleye, 
Primitive  Property,  etc. 

2 Howard,  Local  Constitutional  History  of  the  United  States;  Hannis 
Taylor,  Origin  and  Growth  of  the  Eng.  Constitution  ;  Robinson,  Institu- 
tions, Vol.  I. ;  Historical  Studies  issued  by  the  Johns  Hopkins  University  ; 
Fiske,  American  Political  Ideas ;  same,  Beginnings  of  New  England  ; 
same,  Critical  Period  of  American  History ;  Hare,  American  Constitu- 
tional Law,  first  chapters ;  Woolsey,  Political  Science,  Part  III.,  Chap.  X. 

3  S.  Mayer,  Rechte  der  Israeliten,  Romer  und  Athener,  Book  II.; 
Schoeman,  Athenian  Constitutional  History;  Kuhn,  Entstehung  der 
Stadte  der  Alten ;  Freeman,  Comparative  Politics,  Lectures  3,  4  and  5  ; 
Marquardt,  Romische  Staats-Verwaltung ;  Curtius,  History  of  Greece, 
Vol.  I.,  Book  II.,  Chaps.  I.  &  II.;  same,  Vol.  II.,  Book  II.,  Chap.  V,  176 
seq.;  Rawlinson,  Hist,  of  Ancient  Egypt,  Vol.  I.,  Chap.  XL;  same,  Seven 
Great  Ancient  Monarchies,  Vol.  II.,  Fifth  Monarchy,  Chap.  III.  For 
evidences  of  institutional  life  in  Africa  and  among  other  tribes  see  Post, 
African  Jurisprudenz,  Part  II. ;  same,  Bausteine,  §§103—129. 


Physical  and  Social  Factors  in  Constitutional  Law.    141 

totally  unorganized.  It  stands  for  some  form  of  political 
organization,  but  it  need  not  be  finished  and  permanent;  it 
is  a  creature  of  change  and  development.1  The  elements  of 
constitutional  law  relate  to  the  framework  of  government, 
and  embrace  the  principles  of  usages  which  are  expressed  in 
the  administrative  functions  of  the  governmental  power  or 
powers;  they  will  likewise  embrace,  since  these  cannot  alto- 
gether be  left  out  of  sight  even  in  the  rudest  form  of  govern- 
ment, the  social  relations  of  the  governed  individuals.  These 
elements  vary  in  different  periods  and  localities  and  under 
differing!:  circumstances.  Even  the  constitutions  of  the  states 
of  the  American  Union,  notwithstanding  the  great  similarity 
of  their  organic  conditions,  are  not  alike.2 

The  sacredness  of  a  man's  house  will  find  its  producing 
causes  deep  in  the  early  practice  of  mankind ;  for  practice 
was  the  basis  of  early  social  consciousness,  as  it  is  largely 
even  at  this  day;3  just  as  the  symbols  and  languages  of  our 
day  contain  evidences  innumerable  of  centuries  of  actual 
practice  and  usage. 

As  we  saw  in  our  first  chapter,  Aristotle  based  the  state 
upon  the  family.  He  contended  for  an  intermediate  stage, 
in  the  course  of  political  formative  energy,  between  the 
family  and  the  city — yevoq.4.  This  family  life  was  not,  as 
has  been  shown,  a  copy  of  modern  family  life,  it  was  rather 
a  savage  or  barbarian  group-life  in  constitution ;  that  is,  it 
depended  as  much  upon  association5  as  upon  descent,  and  if 

'See  Post,  Bausteine  fur  eine  allgemeine  Rechtswissen^chaft,  he.  cit.  ; 
Dicey,  Law  of  the  Constitution,  Chapter  II.  Reclus,  in  the  appendices  to 
his  great  work  on  the  Earth  and  its  Inhabitants,  reveals  the  constitutions 
of  all  modern  peoples,  from  the  savages  of  Africa  to  those  of  civilized  aud 
enlightened  nations. 

5  Poore,  Charters  and  Constitutions. 

3Fustel  de  Coulanges,  Ancient  City,  Books  I.,  II.;  Hearn,  Aryan 
Household,  Chaps.  I.  to  IV.;  Leist,  Graeco-Ital.  R.  G.,  pp.  247,  492, 493  ; 
Meier  and  Schoman,  Att.  Process,  Vol.  II.,  784,  785  (raarg.  p.  588). 

4  Politics,  I.,  25.     See  ante  Chap.  I. 

5Starcke,  Primitive  Family,  Chap.  VIII.;  Gomme,  Village  Community, 
39  seq.;  Chap.  III.,  Sec.  II.,  ante. 


142     An  Introduction  to  the  Study  of  the  Constitution. 

it  held  together  was  a  group  which  held  together  for  mutual 
aid,  and  it  may  be  at  a  later  stage  to  keep  up  the  worship  of 
manes.1  The  form  it  took  in  its  expansion  into  a  larger  clan 
or  tribe  depended  upon  whether  it  inhabited  mountains  or 
plain,  whether  it  pursued  a  predatory,  a  herdsman's  or  a 
husbandman's  occupation.  When  it  assumed  that  of  the 
more  settled  occupations  it  had  connected  itself  with  land 
and  a  form  of  residence.2  The  genos  of  Aristotle,  the  gens  of 
Rome,  the  mark  or  gemeindc  of  the  Teutonic  people,  the  Irish 
clan,  and  the  village  community  of  the  East,  may  be  regarded 
as  essentially  the  same  thing,  at  least  to  the  extent  that  each 
depended  upon  a  settled  place  of  rendezvous  or  abode.3  Genos 
and  gens  show  a  blood-kinship  which  lies  at  the  root  of  the 
association.4  The  mutual  obligations  of  clansmen  were  some- 
times of  the  closest  kind ;  every  clansman  was  bound  to 
assist  and  support,  in  all  his  difficulties,  every  other  clans- 
man. The  relics  of  this  are  apparent  in  later  times,  in  the 
duty  the  clan  or  village  community  or  township  owed  to  its 
members  to  defend  them,  pay  their  fine,  help  them  to  procure 
redress,  and  the  like.5  If  one  kinsman  wronged  another  the 
remedy  had  to  be  sought  in  the  domestic  tribunal.  If  a 
member  was  killed  by  a  stranger  the  clan  took  vengeance 
upon  him.(i     When  compensation  was  made  by  weregild  or 

•  'Hearn,  Aryan  Household,  Chaps.  III.,  IV.,  V.,  VI.  Fustel  de  Cou- 
langes,  Ancient  City,  Books  I.,  II.  Coulanges,  however,  gives  this  early 
association  too  elaborate  a  constitution  and  a  too  developed  cult. 

2Leist,  Graeco-Ital.  Rechtsgeschichte,  Book  I.,  Chap.  III.;  Freeman, 
Comparative  Politics,  Lee.  III.;  Laveleye,  Primitive  Property;  Hearn, 
supra  ;  Maine,  Village  Communities  in  the  East  and  West ;  same,  Early 
Hist,  of  Institutions ;  same,  Early  Law  and  Custom  ;  Gomme,  The 
Village  Community,  Chaps.  I.  and  II. 

3Leist  and  Freeman,  last  citation.  See  also  Kuhn,  Entstehurg  der 
Stadte  der  Alten,  and  the  other  authorities  referred  to  in  the  last  pre- 
ceding note. 

4  See  authorities  cited  in  last  preceding  note,  Platner,  Beitriige  zur 
Kenntniss  ties  attischen  Rechts,  Chaps.  IV.,  V.;  and  Chap.  II.,  Sec.  II.; 
also  Chap.  III.,  Sec.  II.  What  is  meant  in  earliest  days  by  blood-kinship 
is  shown  by  Smith,  Kinship  in  Arabia,  Chaps.  I.,  II.,  and  VII. 

6  Hearn,  Aryan  Household,  Chap.  V.,  §6.  6 Ibid. 


Physical  and  Social  Factors  in  Constitutional  Law.  143 

otherwise  it  was  made  to  the  kinsmen.1  In  the  Anglo-Saxon 
community,  as  in  all  early  societies,  the  degree  of  security 
and  distinction  which  each  member  enjoyed  depended  chiefly 
upon  the  number,  wealth  and  power  of  his  kindred,  and 
there  was  little  temptation  to  any  one  to  separate  from  what 
has  been  called  the  family.  But  if  the  tie  of  kinship  created 
rights,  it  also  involved  obligations  which  might  become 
burdensome.  As  civilization  advanced  and  members  of  the 
maegth  became  wealthy  and  powerful,  or  attained  a  higher 
position,  a  tendency  appeared  on  the  part  of  these  to  ignore 
their  poorer  kinsmen.  Afterwards  it  came  to  the  point  that 
a  freeman  did  not  need  to  pay  the  u-eregild  with  a  slave,  or 
with  one  who  for  any  cause  had  forfeited  his  freedom.  The 
kinsmen  lost  their  share  in  the  weregild.  And  the  widening 
of  territorial  control  tended  to  destroy  this  clan  integrity 
still  more.2  At  Athens  and  at  Rome  the  gentes  were  gathered 
together  in  a  higher  union,  that  of  the  curia  or  the  home,  or 
later  <phratria.  This  stage  corresponds  with  that  of  the  Hbfe 
of  Germany,  in  all  probability.4  In  Athens  and  Rome  they 
yielded  to  the  hegemony  of  some  mother  gens,  or  to  some  village 
community  which  had  obtained  the  hegemony  by  ancestral 
priority,  force  or  priestly  cooperation.5  That  was  likewise  true 
of  Germanic  tribes.0  A  phratria  was  at  first  a  brotherhood,  an 
association  of  individuals  clustered  around  a  central  figure 


1Ibid.  See  also  Essays  in  Anglo-Saxon  Law  (The  Anglo-Saxon  Family 
Law). 

2Essays  in  Anglo-Saxon  Law,  139.  Compare  Seebohm,  The  English 
Village  Community  ;  Maine,  Early  Law  and  Custom. 

aLeist,  loc.  eit.;  Freeman,  Comparative  Polities,  Lect.  III.;  Kuhn, 
Entstehung  der  Stadte  der  Alten  ;  Platner,  Beitriige  zur  Kenntniss  des 
attischen  Rechts,  Chap.  V.;  de  Coulanges,  Ancient  City,  Book  III.; 
Marquardt,  Romische  Staats-Verwaltung,  2d  ed.,  Vol.  L,  Chap.  I. 

4  Landau,  Die  Territorien,  Part  II.,  103  seq. 

5 Compare  Kuhn,  Entstehung,  etc.;  Freeman,  passim  ;  Fustel  de  Cou- 
langes, Ancient  City,  Book  III.  It  may  be  that  ultimate  inquiry  will 
show  the  same  with  regard  to  all  early  peoples.  See  Gomme,  The  Village 
Community  ;  Kuhn,  Rom.  Stadt-Verf.,  Vol.  II.,  last  two  chapters. 

6  Landau,  Die  Territorien,  313  seq. 


144     An  Introduction  to  the  Study  of  the  Constitution. 

or  pair,  said  to  form  the  basis  of  the  tribe;  in  fact,  the  tribe 
is  another  name  for  it,  frequently  in  a  more  developed  form.1 
This  did  not  form  the  basis  of  an  early  state  until  land- 
holding  came  into  vogue.  Demos,  landholding,  was  the 
original  prerequisite.2  The  phratria  in  its  later  form  or 
curia  had  a  curion,  a  phratriarch,  who  presided  at  sacri- 
fices and  was  an  enlarged  type  of  the  head  of  the  so-called 
household  group.3  The  god  of  the  later  phratria  was  the 
eponymous  hero.4  Konig  (king),  from  the  Icelandic  hong,  hon 
and  honing,  signified  originally  any  recognized  leader  or 
chief.  The  derivation  of  chieftainship  was  the  same  every- 
where; in  modem  Europe  it  culminated  in  kingdoms  and 
imperial  rule,  in  ancient  Greece  it  never  came  to  this.6 

Thus  in  the  ancient  world  as  in  the  modern  world  the 
course  of  things  was  a  growth  from  the  primitive  condition 
of  nomadic  and  savage  life,  when  the  modern  family  had  not, 
could  not  yet  have  been  formed,  when  the  basis  of  association 
was  largely  contiguity  consequent  upon  a  gregarious  habit 
or  instinct,  which  adherence  to  a  parent  or  parents  might 
foster,  to  be  enlarged  by  adoption  or  by  the  enlargement 
resulting  from  procreation.  Andrew  Lang,  a  careful  student 
of  the  myths  of  savage  and  ancient  peoples  all  over  the  globe, 

1  Leist,  loc.  cil.\  Freeman,  Comparative  Politics,  Lect.  III.,  104.  See 
Platner,  Beitra^e  zur  Kenntniss  des  attischen  Rechts,  Chaps.  IV.  and  V. 

2Kuhn,  Die  Entstehung  der  Stadte  der  Alten,  p.  11,  note  6  ;  Freeman, 
Comp.  Politics,  87 ;  J.  H.  U.  Series,  Vol.  IX.,  pp.  327,  328. 

3  Fustel  de  Coulanges,  Ancient  City,  Book  III. ,  Chap.  I.  The  phratria  was 
at  first  a  domestic  institution  (if  the  term  domestic  is  appropriate  for  this 
early  period),  while  the  home  and  polis  were  political  in  their  nature.  Aris- 
totle does  not  mention  phratria  as  a  political  institution  of  primitive  days. 
Politics,  Book  I.,  Chap.  II.  In  confirmation  of  this  view,  see  Platner, 
Beitrage,  etc.,  Chap.  V.,  and  Leist,  Zur  Gesch.  der  romischen  Societas  ; 
see  also  Leist,  Graeco-ltal.  E.  G.,  Bock  1.,  Chap.  III.,  §g25,  26.  (But 
see  Schrade*-,  Sprachv.  u.  Urg.,  pp.  574,  575.) 

4Coulanges,  Ancient  City,  loc.  cit.  See  on  ancestor  worship  in  general, 
Spencer,  Principles  of  Sociology,  Vol.  I.,  Part  I.,  Chap.  XX. 

5Leist,  Graeco-ltal.  R.  G.,  Book  I.,  Chap.  III.,  105;  Landau,  Die 
Territorien,  313;  Schrader,  Sprachv.  u.  Urg.  584,  note. 

6 Freeman,  Comp.  Politics,  Lect.  IV.     See  infra. 


Physical  and  Social  Factors  in  Constitutional  Law.     145 

has  found  traces  of  savage  life  in  ancient  civilization. 
Though  he  thinks  that  in  Homer's  time  the  Greeks  were 
practically  civilized,  he  finds  many  evidences  in  their  sur- 
viving relics  of  human  sacrifice,  mysteries,  magic,  religious 
customs  and  law  of  homicide,  of  savage  origin.  The  existence 
of  totemism  among  them  is  shown  by  numerous  examples. 
"  The  Thessalians  revered  storks,  the  Thebans  weasels,  and 
the  myth  ran  that  the  weasel  had  in  some  way  aided  Alc- 
mena  when  in  labor  with  Heracles.  In  another  form  of  the 
myth  the  weasel  was  the  foster-mother  of  the  hero.  Other 
Thessalians,  the  Myrmidons,  claimed  descent  from  the  ant." 
He  calls  attention  to  the  religious  respect  paid  to  mice  in  the 
temple  of  Apollo  Smintheus,  in  the  Troad,  Rhodes,  Gela, 
Lesbos  and  Crete,  and  that  a  local  tribe  was  alluded  to  as 
mice  by  the  oracle.  The  people  of  Delphi  adored  the  wolf. 
And  similar  phenomena  are  shown  to  exist  in  Roman  an- 
tiquities. In  connection  with  the  same  set  of  ideas  it  is 
pointed  out  that  several  ykvrh  or  stocks,  had  eponymous 
heroes,  in  whose  names  the  names  of  the  ancestral  beasts 
survived.  In  Attica  the  Crioeis  have  their  hero  (Crio, 
"  ram  "),  the  Butadse  have  Butas  ("  bullman  "),  the  Aegidae 
have  Aegus  ("goat"),  and  the  Cynadse,  Cynus  ("dog").1 
The  belief  in  the  common,  confused  equality  of  men,  goods, 
plants,  beasts,  rivers,  is  common  and  fundamental  in  savagery. 
The  activity  of  beasts  in  the  myths  of  Greece  springs  from 
the  same  source  as  the  similar  activity  of  beasts  in  the  myths 
of  the  Iroquois  or  Kaffirs.2 

How  could  a  primeval  wilderness  become  the  seat  of 
a  settled  community  in  early  days  ?  If  no  immigration 
brought  into  the  country  civilization,  it  must  needs  have 
developed  from  among  its  own  denizens,  indigenous  to  the 
soil,  the  germs  and  riper  fruit  of  civilized  aggregation.  How 
could  that  come?     Clearly  not  until  the  surroundings  had 


1  Lang,  Myth,  Ritual  and  Religion,  Vol.  I.,  Chap.  IX.;  Vol.  II.,  Chap. 
XVII. 

2  Id.  Vol.  I.,  pp.  80,  81.     See  also  Post,  Bausteine,  etc.,  Vol.  II.,  p.  22 ; 
Smith,  Kinship  in  Arabia,  Chap.  VII. 


146     An  Introduction  to  the  Study  of  the  Constitution. 

made   landholding   a    recognized   thing.1      Besides  that,  it 
required  the  occupation  of  the  country  by  many  groups ;  it 
required,  too,  such  pursuit  of  different  occupations  as  would 
render  aggregation  in  larger  bodies  possible,  such  as  a  pas- 
toral, an  agricultural  and  a  seafaring   life   may  represent ; 
and  it  required  a  sufficient  military  organization  to  frustrate 
inimical  groups  or  bodies.     Such  elements  were  found  among 
the  most  advanced  tribes  of  American  Indians   when   the 
white  man  came  to  American  shores.     If,  as  Lang  says,  in 
Homer's  time  civilization  already  existed,  the  people  must 
have  gotten  beyond  the  stage  of  Indian  barbarism  which  the 
white  man  saw  among  the  most  developed  tribes  ;  they  must 
have  gotten  beyond  the  cluster  of  huts  or  wigwams  which 
marked  the  seat  of  Indian  villages  in  those  days.     And  such 
was  no  doubt  the  case.     At  that  time  the  aspects  of  tribal  life 
reflected  in  the  gens  (the  early  kin  as  explained  by  W.  Robert- 
son Smith2)  had  changed,  become  amplified  in  the  shape  of 
groups  of  villages  connected  by  a  sacrificial  cult.3     Komai  or 
demoi   were  parts  of  such  an   aggregate  in  Homeric  days. 
They  were  the  federated  village  groups,  whose  occupations 
had   merged   them,  like   the  early   settled  communities   in 
Switzerland,  in  a  social  unit,  in  reference  to  which  the  habita- 
tions, lands,  products,  village  manes,  were  common  property, 
and  which  developed  upon  a  common  principle  quite  opposed 
to   individual   right.4     In    the   period  of  the  home  (village) 
formation,  prior  to  the  advent  of  the  metrokome  or  the  polls, 
we  look  in  vain  for  an  idea  of  those  individual    rights   of 
property,  security  and  protection  which  are  said,  in  our  con- 
stitutions, to  be  inalienable  rights  of  man.     We  have  seen 

1  Gf.  Reclus,  Earth  and  its  Inhabitants,  Africa,  Vol.  I.,  passim. 

2  Kinship  in  Arabia,  Chaps.  II.,  III.,  IV. 

3  On  the  sacrificial  cult  of  Semitic  peoples,  consult  Wellhausen,  History 
of  Israel,  Chapter  II.,  and  Smith,  Religion  of  the  Semites,  chapters  on 
Sacrifice. 

4  As  to  the  limited  extent  to  which  self-help  had  been  superseded  by 
priestly  intervention  in  Homer's  time,  see  Leist,  Graeco-Ital.  R.  G.,  Book 
II.,  Chap.  III.,  H6  seg. 


Physical  and  Social  Factors  in  Constitutional  Law.  147 

that  at  this  stage  of  social  growth  justice  was  obtained  by  the 
group  to  which  the  individual  belonged,  rather  than  by  him ; 
that  the  group  was  looked  to  for  redress ;  a  redress  obtained 
through  vengeance,  weregeld,  surrender  of  the  offender,  or 
by  battle.  The  group  followed  as  compurgators  when  wager 
by  battle  became  superseded  by  a  larger  discipline,  as  we 
saw  in  an  early  chapter.1 

When  the  komai  or  demoi,  which  were  tied  together  for 
sacrificial  purposes,  developed  a  character  as  market  places, 
as  places  of  defence,  as  fishing  resorts  or  harbors  of  refuge, 
or  fording  places,  they  obtained  a  feature  which  would  in 
course  of  time,  in  connection  with  the  natural  increase  and 
development  which  all  enduring  communities  show,  bring 
into  existence  a  city  (tzoAcc).  The  course  of  growth  was  by 
the  joining  or  combining  together  of  different  groups,  still 
for  an  indefinite  period  preserving  their  clan-like  formation 

1 A  very  modern  relic  of  this  joint  liability  is  to  be  seen  in  those  New- 
England  States  in  which  individual  members  of  towns  are  subjected  to 
liability,  under  execution  against  the  town,  for  indebtedness  of  the  town. 
And  this  without  a  hearing.  See  Eames  v.  Savage,  77  Maine,  212,  214  ; 
Hare,  American  Constitutional  Law,  Vol.  II.,  880,  note.  It  was  there 
said:  "The  practice  of  bringing  suits  against  the  political  division  of 
municipal  organization,  and  collecting  the  judgment  from  the  individuals 
composing  it,  is  believed  to  have  existed  in  England  and  to  have  been 
brought  thence  to  New  England.  Actions  against  the  Hundred  were 
known  as  far  back  as  Edward  I."  (Stat.  13Edw.  I.,C.  2  ;  3  Comyns  Dig., 
Hundred,  C.  2).  Mark  the  reason :  "As  '  the  hundred  '  had  no  property 
except  that  of  the  individuals,  the  judgments  must  have  been  collected 
from  the  individuals."  We  stated  the  course  of  change  from  collective 
to  individual  property  in  another  connection.  It  is  obvious  that  this 
liability  is  not  necessarily  dependent  on  the  fact  stated  by  the  court  in  the 
above  cited  case.  The  court's  reasoning  is  not  in  this  respect  sustained 
by  history.  The  liability  of  the  hundred  or  the  town  depended  upon  col- 
lective liability ;  and  this  assumed  the  real  proprietary  to  be  the  collective 
mass.  That  was  the  development  of  that  course  of  expansion  which  is 
from  household  group  upward  in  widening  dimensions,  until  the  organiza- 
tion of  many  villages  and  hundreds  becomes  practicable.  See  further 
infra  in  this  chapter. 

On  collective  property  in  antiquity,  see  also  Laveleye,  Primitive  Prop- 
erty, Chap.  X. 


148     An  Introduction  to  the  Study  of  the  Constitution. 

independent  of  each  other.1  The  household  group  did  not 
merge  for  a  long  time  into  the  larger  unity.2  In  ancient 
Athens  every  Athenian  formed  a  portion  of  several  distinct 
societies  at  the  same  time ;  he  was  a  member  of  a  household 
(merging  into  a  family,  possibly),  of  a  phratry  or  enlarged 
family  group,  of  a  home  or  demos,  and  of  the  polish  That 
which  always  bound  them  the  most  closely  together  was  the 
need  of  self-defence  and  fear  of  the  gods.  They  carried  the 
eponym  of  the  clan  or  gens  which  had  the  largest  posses- 
sions. Eventually  classes  came  to  be  formed  within  the 
city,  as  its  walls  came  to  be  built  and  extended  and  its 
localities  defined,  such  as  the  eupatridae  or  well-born,  geomori 
or  husbandmen,  and  demiurgi  or  handicraftsmen.4  The  king 
of  Athens  in  its  first  period  dwelt  in  the  citadel  of  Cecrops, 
where  he  held  his  seat  of  government,  and  the  market  place 
was  the  place  for  holding  judicial  process.5  Solon's  laws 
were  the  vain  attempt  of  a  most  advanced  observer  and 
thinker  for  those  days,  similar  phenomena  of  which  may  be 
seen  from  time  to  time  among  barbarous  hordes ;  they  left 
no  enduring  trace.  Yet  they  reflected  the  expansion  of  the 
city,  and  show  us  the  existence  of  trade,  the  beginning  of 
coinage  of  money,  and  other  evidences  of  a  higher  political 
life,  such  as  the  establishment  of  a  fixed  tribunal,  the 
attempted  establishment  of  a  liberty  of  disposition  of  prop- 
erty, educational  institutions  after  a  form,  etc.'1  Under  the 
tyrant  Pisistratus  (it  required  the  discipline  of  a  tyrant  to 
compel  such  results)  Athens  experienced  an  essential  change. 
"Originally  town  and  citadel  had  been-  one,  and  everything 

1  Kuhn,  Die  Entstehung  der  Stadte  der  Alten ;  Curtius,  History  of 
Greece,  Vol.  I.,  Book  II.,  Chap.  II. 

2Coulanges,  Ancient  City,  Book  III.,  Chap.  III. ;  Platner,  Beitriige,  etc. 

3  Compare  Coulanges,  Platner,  Beitriige  ;  Freeman,  Comp.  Politics.  Lect. 
III.;  Kuhn,  Die  Entstehung  der  Stadte  der  Alten  ;  same,  Romische  Stadt- 
verfassung,  Vol.  I.  Kuhn,  in  the  work  last  cited,  illustrates  the  early 
identification  of  the  individual  with  his  group,  by  tracing  up  the  doctrine 
of  munera. 

4 Curtius,  supra,  325.  5  Id.  326. 

6  Id.  350  seq.     Cf.  Schrader,  Handelsgeschichte  u.  Warenkunde. 


Physical  and  Social  Factors  in  Constitutional  Law.     149 

which  helped  to  give  coherence  to  the  city  had  been  united 
on  the  rock  of  the  Acropolis.  .  .  .  The  market  of  [the]  old 
town  or  city  .  .  [was]  situated  where  the  ascent  led  up  from 
the  town  to  the  citadel.  Here  on  a  broad  incline  the  roads 
meet  which  lead  from  the  sea  and  from  the  land.  Hither  the 
peasants  on  market  days  brought  their  wares  for  sale ;  here 
the  old  citizens  assembled,  and  on  a  terrace  hard  by  [the 
pnyx]  held  their  public  councils.  But  in  proportion  as 
Athens  became  the  heart  of  the  whole  country,  and  as  the 
sources  of  gain  increased,  a  more  numerous  influx  of  popula- 
tion took  place  from  the  country  districts.  These  rural 
districts  became  suburbs,  and  these  suburbs  necessarily 
formed  a  contrast  to  ancient  Athens.  .  .  .  The  most  impor- 
tant of  these  suburban  districts  was  the  Ceramicus,  the  name 
of  which  was  derived  from  the  potters."1  In  this  district 
the  progressive  and  revolutionary  factors  were  generated 
which  successfully  overthrew  the  exclusive  exercise  of  muni- 
cipal prerogatives  by  the  old  citizens  or  cupatridae.  The 
growth  of  the  city  was  attended  with  a  development  of  non- 
urban  and  suburban  vicinities,  after  the  form  of  those  village 
communities  which  were  then  still  in  existence;  from  which 
communities  handicraftsmen  came  with  wares.  Thus  gilds 
of  handicraftsmen  had  become  possible,  and  the  agricultural 
community  had  begun  to  develop  other  industries.3  A  sub- 
stantially similar  course  of  development  may  be  predicated 
of  all  ancient  cities,  including  Rome;3  it  is  also  in  the  main 
true  of  the  cities  of  Germany  and  France  and  England 
which  did  not  start  from  Roman  foundations  or  in  later 
modern  times.4 

^urtius,  385,  386. 

2Compare  Curtius,  Vol.  I.,  Book  II.,  Chap.  II.,  and  Coulanges,  Ancient 
City,  Book  IV.,  Chap.  VII. 

3 Ancient  City,  supra;  Marquardt,  Romische  Staatsverwaltung ; 
Mommsen,  History  of  Rome  ;  Knhn,  Romische  Stadtverfassung,  Vol.  I. 

4SeeMaurer,  Geschichte  der  Hof-,  Dorf-  und  Stadt-Verfassung  ;  Arnold, 
Verfassungsgeschichte  der  deutschen  Freistadte.  See  also  Gengler, 
Deutsche  Stadtrechte  ;  Gomme,  The  Village  Community,  pp.  208-230 ; 
Stubbs,  Const.  Hist,  of  England,  Vol.  I.,  404,  405. 


150     An  Introduction  to  the  Study  of  the  Constitution. 

In  the  earliest  periods  of  human  kind  we  see  human  beings 
living  in  groups  as  already  indicated.  In  the  early  history 
of  communities  undergoing  a  growth  from  the  primitive 
stage,  we  shall  see  no  community  populating  the  land  as  a 
pastoral  or  agricultural  people  which  does  not  live  in  the 
village  or  even  a  more  developed  form.  In  the  Peloponnesus 
and  elsewhere  in  Greece  in  earliest  days  there  was  no  popu- 
lation outside  of  such  communities;1  and  that  is  true  of 
other  people  at  a  similar  stage  of  growth.2  So  the  early 
Germans  and  the  Britons,  who  antedated  Roman  rule,  had 
no  population  except  of  this  nature,  though  it  is  said  the 
Germans  had  no  cities.3  They  had  not  yet  become  sufficiently 
advanced  to  form  such  cohesive  and  developed  aggregations 
as  cities ;  they  lacked  the  roads,  the  agricultural  knowledge 
and  industrial  occupations  to  achieve  this.  Eventually 
they  formed  cities,  and  not  after  Eoman  models  either.4  In 
the  growth  of  medieval  cities  we  see  substantially  the  same 
process  of  aggregation,  the  same  predominance  of  old  in- 
habitants of  influence  as  the  ruling  power,  their  gradual 
overthrow  by  the  expansion  of  handicrafts  and  gilds,  to- 
gether with  an  expansion  of  the  city's  limits,  a  develop- 
ment of  its  architecture,  its  arts,  its  police,  and  its  money 

1  Hermann,  Griechischen  Antiquitaten,  Vol.  I.,  §11,  p.  83  ;  Kuhn,  Die 
Entstehung  der  Stiidte  der  Alten,  p.  8 ;  Engels,  Ursprung  der  Familie, 
des  Privat-Eigenthuras  und  des  Staats,  Chapters  IV.  and  V. 

2  W.  Robertson  Smith  says  of  the  Aryans  and  Semites,  "  In  both  races 
the  first  steps  of  social  and  religious  development  took  place  in  small 
communities,  which  at  the  dawn  of  history  exhibited  a  political  system 
based  on  the  principle  of  kinship,  and  were  mainly  held  together  by  the 
tie  of  blood,"  etc.,  Religion  of  the  Semites,  p.  33. 

3  Tacitus,  Germania,  18;  Maurer,  Mark-,  Hof-,  Dorf-  u.  Stadt-Verfas- 
sungsgeschichte  ;  Waitz,  D.  V.  G.,  Vol.  I.,  p.  Ill  ;  Heusler,  Ursprung 
deutscher  Stadtverfassung,  245  seq.;  Arnold,  Geschichte  desEigenthums, 
pp.  1,  2;  Freeman,  Comp.  Politics,  130;  Williams,  Communes  of  Lom- 
bardy,  J.  II.  H.  Series,  Vol.  IX.,  p.  248. 

"Arnold,  Verfassungsgeschichte  der  deutschen  Freistadten ;  Arnold, 
Geschichte  des  Eigenthums,  pp.  1,  2;  Freeman,  Comp.  Politics,  130; 
Williams,  Communes  of  Lombardy,  J.  H.  H.  Series,  Vol.  IX.,  p.  248; 
Kuhn,  Romische  Stadtsverfassung,  Vol.  II.,  407  seq. 


Physical  and  Social  Factors  in  Constitutional  Law.     151 

and  the  roads  converging  there.  There  are  still  many  relics 
of  the  earlier  forms  from  which  the  city  was  originally  de- 
rived left  after  the  city  has  assumed  a  unified,  consolidated 
existence,  with  mayor,  Rath  or  board  of  aldermen  and  other 
officers — names  which  had  their  origin  (before  city  life  could 
have  been  thought  of)  among  the  groups  that  had  so  far 
developed  a  regimen  and  a  productive  power,  had  so  far 
developed  their  landholding  and  their  military  constitution, 
as  to  have  an  overlord  and  a  retinue  to  look  after  his 
interests  and  a  number  of  serfs  to  supply  his  wants.  The 
country  around  receives  an  impetus  from  the  city  organiza- 
tion. 

In  the  names  of  words  we  can  obtain  an  insight  into  the 
progress  from  primitive  groups  to  city  life.  Take  the  suffix 
ton,  the  primary  meaning  of  which  is,  it  is  said  by  good 
authority,  to  be  sought  in  the  Gothic  tains,  the  old  Norse 
teinn,  and  the  Frisian  tene,  all  of  which  mean  a  twig.  It 
denoted  a  place  surrounded  by  a  hedge  or  rudely  protected 
by  a  palisade.  Originally  it  meant  only  a  single  croft,  home- 
stead or  farm.  In  Scotland  the  solitary  farmstead  is  still 
called  a  toun.  In  most  cases  the  ton  became  the  nucleus  of  a 
village;  then  the  villages  grew  into  the  town.  Frequently 
the  town  (for  instance,  London  town)  grew  into  a  city.1  It 
likewise  continued  to  signify  a  more  loosely  aggregated  and 
extended  people  than  is  ordinarily  implied  in  city  organiza- 
tion, as  the  townships  of  Massachusetts  compared  with  the 
city  of  Boston,  of  which  more  will  be  said  presently.  The 
Anglo-Saxon  iveorthig,  English  worth,  has  a  meaning  analo- 
gous to  ton,  denoting  a  place  warded  or  protected,  probably 
an  enclosed  homestead  for  the  churls,  subordinate  to  the  ton. 


1  The  above  portion  of  this  paragraph  is  taken  from  Taylor,  Words  and 
Places,  79  seq.  See  also  Maurer,  Mark-,  Hof-,  Dorf-  u.  Stadt-Verfassungs- 
geschichte;  Howard,  Local  Constitutional  Hist,  of  the  U.  S.,  Chap.  I.; 
The  Germanic  Origin  of  New  England  Towns,  by  Herbert  B.  Adams,  in 
Vol.  I.  of  Johns  Hopkins  Historical  Studies;  Gomme,  The  Village  Com- 
munity, pp.  208-230. 


152     An  Introduction  to  the  Study  of  the  Constitution. 

It  constituted  a  suffix  in  the  names  of  Bos  worth,  Tamworth, 
Kenilworth,  Walworth,  etc.1  Ham  and  heim,  two  words 
whose  primitive  constitution  was  the  household  group  or 
primitive  association,  have  furnished  suffixes  to  many  exist- 
ing villages,  towns  and  cities  of  England  and  Germany. 
Their  primitive  meaning  has  survived  in  home,2  showing 
how  the  constitution  of  the  household  changed  with  the  ex- 
pansion of  the  community,  dropping  those  characteristics 
which  did  not  depend  upon  consanguinity,  and  retaining  the 
blood-relationship.  Ing  is  said  to  have  had  the  same  place 
in  early  England  that  mac  had  in  Scotland,  o  in  Ireland,  ap 
in  Wales,  or  herd  among  the  Arabs ;  it  was  the  usual  Anglo- 
Saxon  patronymic,  a  clan  name,  and  it  found  its  way  with  the 
growth  of  the  objects  it  represented  into  cities,  such  as 
Buckingham,  Kensington.8  Such  adventurers  as  Grim, 
Orm,  Hacon  or  Asgar  left  their  names  in  Grimsby,  Ormsby, 
Haconby,  Asgarby.4 

Amphictyonies,  or  festival  associations,  are  claimed  by 
Curtius  to  be  coeval  with  Greek  history ;  to  constitute  even 
the  first  expressions  of  a  common  national  history.  Before 
the  existence  of  these  associations  there  existed  nothing  but 
single  tribes,  "  each  of  which  went  its  own  way,  adhering  to 
its  own  peculiar  code  of  manners,  and  worshipping  before  its 
own  altars,  to  the  exclusion  of  all  worshippers  of  a  foreign 
race."5  They  became  conspicuous  in  the  early  period  of 
Greek  history,  when  by  migration  and  settlement  one  group 
or  tribe  or  people  succeeded  another;  when,  by  federation, 
before  some  common  sanctuary,  a  large  enough  collection  of 
groups  had  ensued  to  give  currency  to  a  god  common  to 
such  groups.  There  were  amphictyonies  at  different  stages 
of  Greek  history  which  embraced  consecutively  larger  areas 

1  Taylor,  Words  and  Places,  80.  '  Ibid. 

3  Taylor,  Words  and  Places,  83.  *Jbid. 

5  History  of  Greece,  Vol.  I.,  Chap.  IV.,  123.  See  also  Freeman,  Comp. 
Politics,  Lect.  III.,  88  ;  Hermann,  Griechische  Antiquitiiten,  Vol.  I.,  §12. 


Physical  and  Social  Factors  in  Constitutional  Laiv.     153 

and  interests,  and  the  temple  at  Delphi  emphasized,  as  it 
grew,  this  expansion.  That  they  occasioned  the  Olympian 
calendar,  the  games,  the  dramatic  arts,  and  promoted  poesy 
and  the  arts  cognate  to  temple  service,  is  unquestionable. 
But  they  did  not  expend  their  influence  solely  in  this  way, 
for  they  became  the  forerunners  of  the  leagues  of  cities  which 
outlasted  the  influence  of  the  Delphian  priesthood.1  An 
amphictyony  was  but  a  copy  of  what  existed  in  the  home, 
developed  upon  a  larger  scale.  Both  led  to  if  tfrey  were  not 
based  upon  the  hegemony  of  one  group,  clan,  tribe  or  com- 
munity over  others — a  synoikismos,  as  that  of  Sparta  and 
Athens.2  Similar  phenomena  exist  elsewhere  among  other 
peoples  at  similar  stages  of  development. 

The  spread  and  presence  of  population  entailed  in  the 
ancient  world  the  establishment  of  offshoots  or  colonies.  The 
headship  in  leagues  of  cities  might  for  a  time  thus  be  pro- 
moted in  favor  of  the  mother  city,  but  it  would  be  more 
likely  to  cease  as  the  child  developed  those  more  advanced 
elements  which  it  had  received  from  the  prior  experience  of 
its  parent.  Eventually  the  leadership  of  some  military 
genius  would  expand  the  dominion  and  rule  of  a  single  city 
or  people.  This  is  true  of  any  people  not  possessing  the 
characteristics  of  a  developed  national  existence.  It  repre- 
sents in  its  highest  stage,  as  in  Rome,  an  artificial  bond 
imposed  by  some  central  power,  dependent  on  leadership. 

A  peculiarity  of  ancient  rule  is  the  expansion  of  leadership 
in  some  one  community,  which  obtained  its  most  conspicuous 
illustration  in  the  establishment  of  Roman  dominion.  It 
came  from  the  East,  and  had  begun  to  develop  on  Roman 
soil  before  it  had  obtained  its  limit  in  Greece.     It  may  have 

'There  are  strong  general  analogies  between  the  course  of  development 
here  spoken  of  regarding  Greek  growth  and  Semitic  growth.  Cf.  Well- 
hausen,  History  of  Israel ;  Smith,  Religion  of  the  Semites. 

2Kuhn,  Entstehung  der  Stiidte  der  Alten  ;  same,  Romische  Stadtverf., 
Vol.  II.  ;  Leist,  Graeco-Ital.  R.  G.,  Book  I.,  Chap.  III.  ;  Hermann, 
Griechische  Antiq.,  Vol.  I.,  §11,  p.  82;  Schrader,  Sprachv.  u.  Urg.,  p.  582. 


154     An  Introduction  to  the  Study  of  the  Constitution. 

had  a  less  marked  development  in  those  Asiatic  lands  in 
which  the  conditions  of  climate  and  topography  facilitated 
the  rise  of  a  single  household  above  the  balance  of  the  given 
group, — clan  or  tribal  aggregate, — as  of  the  Achamenidse  in 
Persian  history. 

The  leagues  of  cities  in  medieval  days  did  not  resemble 
those  of  the  ancient  cities.  Though  all  were  formed  for  the 
purpose  of  mutual  protection,  the  basis  of  ancient  leagues 
was  sacrificial  cult  and  war,  while  that  of  the  more  modern 
cities  was  commerce  and  the  promotion  of  industrial  arts. 
The  basis  of  formation  of  the  cities  had  obviously  changed. 
The  modern  city  was  a  product  of  military,  clerical  and  kingly 
factors,  it  is  true,  but  industrial  and  commercial  development 
gave  that  coloring  to  it  which  made  it  wealthy,  lasting,  influ- 
ential ;  and  it  was  distinguished  from  the  ancient  city  not  in 
being  a  growth,  but  in  being  a  growth  from  conditions  which 
rendered  its  rise  and  continuance  in  the  main  indispensable. 
The  populating  of  territory  had  preceded  or  been  coeval  with 
it,  and  the  rise  of  handicrafts  and  barter  had  facilitated  it.  The 
banding  together  of  large  areas  of  territory  under  princely 
sway,  of  which  more  will  be  said  presently,  rendered  the 
medieval  city  a  mere  element  in  the  growth  of  dukedoms  or 
kingdoms.  No  doubt  more  roads  and  better  transportation, 
and  a  greater  demand  for  roads  and  better  transportation,  led 
to  the  close  intermingling  and  consolidation  of  the  parts  of 
the  lord's  dominions.  These  differences  between  the  ancient 
cities  and  medieval  municipalities  were  increased  by  differ- 
ences of  organization.  The  ancient  city  was  more  or  less 
the  seat  of  government  for  territory  extending  beyond  it. 
Its  policy  was  rather  to  build  up  administrative  functions 
for  territory  and  rule  beyond  the  somewhat  bounded  locality 
of  its  inhabitants.1  The  weakness  of  ancient  cities  appeared 
in  the  character  of  loose  municipal  organization  they  dis- 

1  In  this  connection  an  excellent  paper  by  William  Klapp  Williams, 
upon  "The  Communes  of  Lombardy"  (in  Johns  Hopkins  Historical 
Series,  Vol.  IX.,  p.  233),  should  be  consulted. 


Physical  and  Social  Factors  in  Constitutional  Law.     155 

played,  and  the  lack  of  some  organic  power  capable  of  keep- 
ing them  alive  and  in  harmonious  intercourse.  There  was 
an  absence  of  gradual  development  and  too  much  of  sudden 
and  eccentric  expansion  in  given  localities,  due  to  the 
promotion  of  warlike  enterprises.  Yet  we  can  see  many 
indications  of  individual  capacity  and  energy  then  existing, 
quite  equaling  anything  our  modern  age  has  produced; 
philosophers,  sculptors,  architects,  artisans,  poets,  orators, 
dramatists,  generals,  then  existed  who  exhibited  a  capacity 
capable  of  producing  all  that  modern  geniuses  in  similar 
fields  have  produced  under  favorable  environment.  Rome 
especially  awakens  our  interest  in  the  scope  and  extent  of 
her  development  and  dominion. 

When  Rome  attained  the  zenith  of  her  power  she  stood  on 
the  banks  of  the  Tiber  the  leader,  the  dictator,  of  a  vast  terri- 
torial empire,  reaching  from  the  heart  of  Asia  to  the  Atlantic 
shores,  and  from  the  equator  to  the  North  Sea.  Her  influence 
had  gone  far  beyond  her  city  walls.  She  dictated  the  policy 
of  innumerable  communities,  to  some  of  which  she  accorded 
equal  municipal  privileges  to  those  enjoyed  by  herself,  even 
to  the  right  of  connubial  relations  with  her  own  citizens ; 
to  others  she  accorded  commercial  privileges,  and  some  she 
destroyed.  She  built  up  with  the  expansion  of  her  territory, 
by  military  prowess,  a  comprehensive  provincial  administra- 
tion which  bears  the  strongest  evidence  of  ripe  experience 
and  study — all  tributary  to  her,  all  accountable  to  her.  Her 
power  of  control  was  seconded  by  a  supervision  which  she 
retained  by  the  periodical  change  of  provincial  administra- 
tors. She  developed  an  elaborate  system  of  finance  and 
military  organization.  Her  roads  were  safe  and  phenom- 
enally good  and  reached  the  utmost  confines  of  her  dominion. 
She  developed  schools  of  practical  philosophy,  literature, 
jurisprudence,  that  kept  pace  with  her  spread  of  dominion; 
but  she  fell  to  pieces,  leaving  only  vestiges  of  her  power,  in 
virtue  of  the  antagonistic  elements  which  she  expanded 
within    her   dominion    and    the   enfeeblement   of    her   own 


156     An  Introduction  to  the  Study  of  the  Constitution. 

citizenship.  To  her  dominion  the  influence  of  medieval  cities 
cannot  compare.  Agencies  had  arisen  which  precluded  the 
possibility  of  imperial  dominion  for  any  of  them.  Rome 
was  an  outcome  of  surrounding  growth,  it  is  true,  but  she 
was  more.  She  undertook  to  impose  her  civilization  and 
superior  advancement  upon  elements  which  were  not  adapted 
to  receive  them ;  she  kept  them  attached  to  her  and  retained 
her  own  power  until  the  whole  organism  became  permeated 
by  disintegrative  elements.  Then  she  dropped  to  pieces,  not 
through  any  single  cataclysm,  but  by  perceptible  stages,1 
embracing  many  generations  and  centuries. 

She  fell  to  pieces,  leaving  many  evidences  of  her  influence 
among  the  peoples  who  carried  human  history  up  to  the 
highest  stage  of  modern  statecraft  and  civilization.  She 
visibly  affected  Europe  in  the  military,  city  and  juridical 
phenomena  she  left  behind.  The  Church  itself  utilized  her 
knowledge  of  control  and  administration  to  attain  for  a  time 
a  widespread  power.  But  the  elements  of  enduring  life  con- 
tinued their  process  of  slow  development,  only  imperceptibly 
affected  by  Roman  power  and  influence.  Such  was  the 
verdict  which  the  stealthy  and  silent  forces  of  social  growth 
accorded  to  that  imperial  dominion  in  which  territorial 
solidarity  was  practically  unknown,  in  which  the  methods 
of  control  were  devised  to  secure  submission  to  the  autocracy 
of  the  imperial  city.  It  was  a  lesson  that  was  not  learned 
by  Charlemagne,  with  all  his  ability,  the  dismembered  parts 
of  whose  imperial  dominions  after  his  death  gave  protest  to 
the  artificial  consolidation  which  he  had  attempted.  It  was 
lost  in  another  way  upon  the  framers  of  the  constitution 
which  French  statesmanship  adopted  to  stay  the  course  of 
sanguinary  revolution. 

Thus  far  we  have  traced  the  institutions  of  early  city  life 
as  they  grew  up.     Many  of  the  factors  which  produced  them 

1  Cf.  Gibbon,  Decline  and  Fall  of  the  Roman  Empire.  See  Marquardt, 
Romisehe  Staatsverwaltung ;  Mommsen,  History  of  Rome  and  Roman 
Provinces  ;  Kuhn,  Romisehe  Stadtverfassung. 


Physical  and  Social  Factors  in  Constitutional  Law.     157 

found  expression  in  other  ways.  Many  other  factors  which 
tended  to  produce  institutions  varying  from  that  produced 
by  city  life  were  affected  by  it ;  some  were  an  outcome  there- 
from. In  early  days  capture  was  the  basis  of  a  great  spread 
of  serfdom.  In  addition  to  this,  the  wild  power  of  some 
head  or  chief  would  tend  to  produce  that  kind  of  unrestrained 
control  over  the  weak  and  unresisting  ones,  such  as  the  chil- 
dren and  the  women,  which  is  another  name  for  serfdom. 
Early  Asiatic  and  European  communities  exhibit  the  existence 
of  serfdom  upon  an  extended  scale.  "  Slavery  has  been  the 
common  law  of  all  times  and  places  till,  within  a  few  centuries 
past,  it  has,  among  most  of  the  nations  of  the  western  Aryan 
stock,  either  died  out  or  been  formally  abolished."1  Accord- 
ing to  Mr.  Spencer,  women  constituted  the  earliest  slave- 
class.2  The  cultivation  of  the  soil  being  a  toilsome  occupa- 
tion, when  early  communities  are  found  in  which  agriculture 
is  at  all  developed  it  is  carried  on  by  the  serfs.3  The  pursuit 
of  agriculture  was  not  voluntarily  resorted  to;4  and  the  needs 
in  this  regard,  as  communities  grew,  entailed  a  resort  upon  an 
increased  scale  to  serfdom.5  The  warrior  chiefs  and  their 
followers  were  the  masters;  the  women,  the  captives,  etc.,  did 
the  menial,  predial  and  other  work,  including  the  herding  of 
the  flocks.6  That  an  absence  of  autocratic  regimen  upon  an 
elaborate  or  extended  scale  rendered  the  discipline  over  the 
earlier  serfs  less  onerous  is  probable ;  they  were  counted 
in  the  household  association,  joined  in  the  same  devotions, 
shared  the  same  sacrificial  meal,  were  laid  in  the  common 
tomb.  The  distinction  between  them  and  the  blood  relations, 
promoted  by  priestly  encouragement  of  family  relationship, 

freeman,  Corap.  Politics,  Lect.  VI.,  248.  See  also  S.  Mayer,  Recht 
der  Israeliten,  Rijmer  und  Athener,  Vol.  II.,  §130  seq.;  Wallace,  Russia, 
Chap.  XXIX.;  Felix,  Einfluss  der  Sitten  u.  Gebrauche,  etc.,  250  seq.,326. 

2  Spencer,  Principles  of  Sociology,  Vol.  I.,  Part  III.,  §326. 

3 Maine,  Early  History  of  Institutions,  150,  151. 

4  Wallace,  Russia,  335. 

5  Maine,  ubi  supra  ;  Wallace,  supra. 

6  See  Maurer,  Mark-,  Hof-  und  Dorf-Verfassungsgeschichte. 


158     An  Introduction  to  the  Study  of  the  Constitution. 

tended  to  become  more  distinct  as  the  elements  of  political 
existence  took  on  more  definite  and  multifarious  forms,  and 
tended  in  an  increasing  measure  to  render  practicable  the 
establishment  of  large  territorial  empires.1  That  the  serf's 
position  is  most  favorable  where  the  pressure  of  a  developed 
imperial  or  state  power  does  not  operate  to  render  the  status 
of  the  slave  more  severe,  is  indicated  by  the  circumstance  of 
his  position  in  the  early  groups  being  equal  to  that  of  the 
mother  and  children,  and  is  confirmed  by  the  increasing 
onerousness  of  his  position  up  to  a  certain  point  in  large 
political  jurisdictions.2  In  the  days  of  the  Persian  invasion 
under  Xerxes  the  relation  of  serfs  to  families  in  Greece  is 
said  by  Curtius  to  have  been  easy :  "  Fostered  by  a  community 
of  manners  and  religion,  ...  the  relation  between  masters  and 
slaves  was  regarded  as  mutually  advantageous  and  in  accord- 
ance with  nature.  Nor  was  it  possible  to  conceive  of  the  existence 
of  a  Greek  community  without  this  basis."  They  performed  all 
subordinate  household  duties,  they  tilled  the  land,  attended 
to  kitchen  and  cattle,  they  served  their  masters  as  handi- 
craftsmen and  laborers.3  Their  position  in  Palestine  was  not 
more  onerous.4  But  at  least  in  Athens,  at  this  time,  essential 
differences  could  be  noted  between  their  privileges  and  those 
of  the  blood  relations.'  In  Rome,  in  its  earlier  days  of 
imperial  rule,  the  condition  of  the  serf  had  become  more 
severe  as  far  as  his  duties  were  concerned.  His  status  was 
controlled  by  his  master ;  he  obtained  very  little  recognition 
by  the  government.6  But  when  the  effects  of  the  introduc- 
tion of  large  foreign  elements,  including  the  improvement  in 
the  condition  of  the  serfs,  gave  that  disintegrative  impulse  to 
Roman  dominion  already  referred  to,  discipline  gave  way  to 

^ee  Hearn,  Aryan  Household,  Chap.  IV.,  §6;  Chap.  XV.,  §5. 
2 Id.  Chap.  XV.,  §5;  Curtius,  History  of  Greece,  Vol.  II.,  286  seq. 
-  Curtius,  Hist,  of  Greece,  Book  III.,  Chap.  I.,  286, 287.     See  S.  Mayer, 
Rechte  der  Israeliten,  Roraer  u.  Athener,  Vol.  II.,  ?132. 
4  S.  Mayer,  ubi  supra. 

6S.  Mayer,  supra.     Cf.  Vol.  I.,  §75  ;  and  Vol.  II.,  §132. 
6 See  S.  Mayer,  supra;  Hearn,  Aryan  Household,  Chap.  XV.,  §5. 


Physical  and  Social  Factors  in  Constitutional  Law.     159 

the  sentiment  of  higher  feeling  produced  by  the  commerce 
and  intellectual  development  which  the  expansion  of  Roman 
dominion  had  superinduced,  his  condition  became  ameliorated, 
and  he  received  more  and  more  recognition  from  the  govern- 
ment.1 Now  the  family  relations  had  become  marked  off; 
the  slave  or  serf  was  no  longer  the  equal  of  the  chiM.2  In 
the  time  of  Justinian  the  family  had  developed  into  an  asso- 
ciation depending  upon  marriage  and  involving  the  creation 
of  agnatic  as  well  as  cognatic  kindred.8  The  ramifying 
occupations  of  such  a  mass  of  population  as  was  embraced 
within  the  pale  of  Roman  dominion,  dealing  with  commerce, 
finance,  large  landholdings  not  based  on  household  or  tribal 
grouping,  but  creative  of  large  possessions  in  single  hands 
by  the  exercise  of  superior  financial  skill  or  through  military 
influence,  all  tended  to  change  the  status  of  serfdom  from  a 
household  or  tribal  feature  into  a  political  status;  or,  as  it  is 
sometimes  said,  all  tended  toward  public  recognition  of 
status.  It  eventuated  in  a  recognition  of  some  property 
rights  respecting  the  serf's  acquisitions  under  certain  circum- 
stances.4 In  the  later  history  of  mankind,  as  illustrated  in 
the  Southern  States  of  the  North  American  Federal  Union, 
the  position  of  serfs  was  due  to  agricultural  conditions  which 
started  from  individual  needs,  but  received  State  recognition 
and  control.  There  never  was  any  similarity  between  the 
family  relations  and  the  condition  of  the  serf  among  them. 
This  is  the  latest  stage  prior  to  the  extinction  of  predial 
servitude.  It  is  another  evidence  that  real  family  life  as  we 
understand  it  is  a  comparatively  modern  product.5 

Serfdom,  widely  prevalent,  is  a  characteristic  of  early  stages 
of  development,  created   most  probably  by  the  pursuit  of 

lCf.  Zrodolowski,  Das  Romische  Privatrecht,  Vol.  I.,  §§25-28; 
Puchta,  Institutionen,  Vol.  II.,  §§211,  212,  213  ;  Amos,  Civil  Law,  Part 
II.,  Chap.  IV.,  §1. 

2  Amos,  supra,  §2  seq. 

3  Amos,  ubi  supra;  Leist,  Graeco-Ital.  Rechtsg.,  Book  I.,  Chaps.  I. 
and  II. 

4 Zrodolowski,  ubi  supra  ;  Puchta,  ubi  supra  ;  Amos,  ubi  supra. 
5  Of.  Laveleye,  Primitive  Property,  Chap.  XIII. 


160     An  Introduction  to  the  Study  of  the  Constitution. 

war,  and  lasting  through  the  stages  of  pastoral  and  agricul- 
tural growth  up  to  our  modern  date,  coloring  all  forms  and 
modes  of  institutional  growth.  A  pervading  type  of  status,  it 
has  played  a  conspicuous  part  in  every  phase  of  early  political 
development,  and  is  found  wanting  only  in  that  earliest 
matriarchal  condition  which  antedated  the  rise  of  political 
forms. 

With  the  progress  of  slavery  reflected  in  the  history  of 
Anglo-Saxon  times1  and  among  the  Germanic  peoples ; 2  M'ith 
the  evolution  of  these  peoples  from  early  household3  to 
political  status  (as  may  easily  be  conjectured),  went  a 
movement  of  social  forms  and  forces  in  other  directions. 
We  have  seen,  briefly  outlined,  the  outcome  in  municipal 
organizations.  We  may  also  observe  the  play  of  such  forms 
and  forces  in  the  growth  of  kingship  and  a  nobility,  in  the 
concentration  of  dominion  over  territories  and  subject  popu- 
lation, in  ascending  gradations. 

The  tribal  chief,  the  cyningi  or  hmung?  famishes  us  with 
the  illustration  of  a  chieftainship  which  ultimately  embraced 
the  territory  of  France ;  so  that  of  Britain,  Austria,  Prussia, 
etc.  Its  etymology  is  not  to  be  sought  in  the  mere  chronicles 
of  names,  but  in  the  social  throes  which  converted  a  sparsely 
settled  and  barbarous  wilderness  into  a  beautifully  cultivated 
land  teeming  with  population,  industrial  arts,  cities,  etc. 
The  histories  of  different  countries  give  varying  accounts  of 
the  vicissitudes  attending  the  process  of  aggregation  and  con- 
solidation and  centralization  of  power  which  elevated  a  tribal 
dignitary,  having  small  superiority  over  his  associates,  into  a 

1  Cf.  Seebohm,  The  English  Village  Community. 

2 Cf.  Zoepfl,  Deutsche  Rechtsgeschiehte,  Vol.  II.,  §24  seq.;  Maurer, 
Hofverfassung,  Vol.  I.,  §§3-9;  Id.  Vol.  II.,  §191  seq. 

3  The  term  household  is  used  to  represent  the  early  kinship  group  and 
its  developments. 

4  Freeman,  Comp.  Politics,  Lect.  IV. 

5  Landau,  Territorien,  Chap.  V.,  312  seq.  The  etymology  of  king  is 
said  to  be  dubious;  Gneist,  Hist,  of  Eng.  Cons.,  Vol.  I.,  17,  note.  But 
see  Isaac  Taylor,  The  Origin  of  the  Aryans,  193 ;  Grimm,  Rechts  Alter- 
thiimer,  229  ;  Schrader,  Sprachv.  u.  Urg.,  5S3,  584  and  note. 


Physical  and  Social  Factors  in  Constitutional  Law.     161 

more  or  less  autocratic  ruler  over  individuals  and  urban  and 
non-urban  communities,  over  industrial  interests  of  enormous 
influence,  over  nobles  of  varying  grades,  some  at  times  rival- 
ing the  king  in  power.  In  France  and  Englanl  the  exten- 
sion of  his  power  meant  the  welding  together  of  antagonistic 
rulers  of  lesser  dominions  by  force  of  arms  and,  more  espec- 
ially, by  the  aid  of  those  more  irresistible  forces  which  the 
development  of  agricultural  and  industrial  communities  in 
country  and  city  life  superinduced.  The  merger  kept  pace 
with  a  loss  of  dominion  in  the  lesser  nobility;  with  the 
welding  together  of  these  dominions  into  a  territorial  unit 
for  imperial  purposes.  The  earl,  graf  or  count  became  the 
subject  of  the  king,  and  with  that  his  courts  yielded  a 
superior  place  to  the  king's  courts.  The  king's  peace  came 
after  a  while  to  pervade  the  political  body,  displacing  the 
arbitrary  caprice  or  the  ordered  protection  of  the  lesser  lord.1 
As  the  concentration  of  power  went  on,  aided  by  the  habits 
and  occupations  and  relationships  among  the  masses,  which 
rendered  intercourse  more  and  more  expedient,  upon  an 
enlarging  scale,  over  wider  expanses  of  territory,  the  dis- 
position toward  unification  increased.  The  ultimate  empire 
or  kingdom  contained  the  evidences  of  this  merger.  The 
shire  or  county  was  originally  the  jurisdiction  of  a  noble,  a 
king  in  all  but  name.  The  component  parts  of  which  it  was 
composed — manors,  parishes,  townships,  hundreds — origi- 
nally represented  independent  groupings  having  their  own 
customs  and  observances  and  their  own  courts.  They  all 
came  later  than  the  earliest  savage  groupings ;  though  savage 
groupings  were  the  germ  from  which  they  evolved.3 

The  manors  are,  no  doubt,  the  relics  of  that  earliest  form 
of  landholding  which  has  already  been  mentioned.  They 
imply,  of  course,  much  more  than  this  earliest  form,  but  they 
represented  the  expansion  of  that  early  grouping  by  associa- 
tion which  ultimately  yielded  to  the  control  of  a  leader,  and 

'Pollock,  Oxford  Lectures,  etc.,  Lee.  III. 

s  Howard,  Local  Constitutional  History  of  the  United  States,  D. 


162     An  Introduction  to  the  Study  of  the  Constitution. 

culminated  in  the  formation  of  landed  possessions  controlled 
by  a  baron  or  the  equivalent,  and  inhabited  by  cultivators, 
some  of  whom  had  comparative  freedom  and  rendered  little — 
and  that  little,  certain — service,  and  by  others  more  imme- 
diately belonging  to  his  own  following,  who  rendered  menial 
or  unlimited  service.1  Most  likely  the  freer  holders  had 
previously  constituted  a  separate  and  independent  landholding 
element  that  had  grown  up  from  an  independent  group.'! 
The  ultimate  constitution  of  the  manor  exhibits  the  holding 
of  courts-baron  and  courts-leet,  in  the  similitude  of  the 
courts  of  the  kingdom.3  Here  presentment  was  made  of  the 
offenses  cognizable  before  the  manorial  courts  and  lesser 
disputes  were  settled.4  The  free  inhabitants  in  courts-leet 
inquired  into  encroachments  on  highways  by  ditching,  en- 
closure, putting  dunghills  or  carrion  thereon,  etc. ;  of  eaves- 
droppers, barrators,  unlicensed  ale-houses,  gaming-houses, 
bakers,  pound-breach,  rescue,  game,  constables,  etc.  They 
were  directed  to  present  such  other  offenses  as  they  had  per- 
sonal cognizance  of.5  In  courts-baron  they  presented  in- 
formations regarding  deaths  of  tenants,  services  withdrawn, 
lands  concealed,  escheats,  commons,  mortmain,  who  was 
tenant,  waste,  trespasses,  pound-breach,  encroachments,  com- 
mon inclosed,  evidences  belonging  to  the  lord  concealed,  etc.,1' 
showing  a  development  from  the  mark  community7 — a  com- 

^eebohm,  The  English  Village  Community;  Gomme,  Village  Com- 
munity, Chap.  III.,  pp.  54  seq.;  Scrutton,  Commons  and  Common  Fields  ; 
Landau,  Die  Territorien,  Chap.  II.;  Gneist,  Hist,  of  the  Eng.  Cons.,  Vol. 

I.,  147. 

2  Landau,  Die  Territorien,  Chap.  II. 

3Kitchin,  On  Courts- Leet ;  Sir  "Will  Scroggs,  Practice  of  Courts-Leet 
and  Courts-Baron. 

4  In  England  the  oath  of  the  jury  was,  mutatis  mutandis,  like  that  in  the 
king's  courts ;  that  is,  those  which  superseded  the  earlier  earls'  courts, 
courts  of  Oyer  and  Terminer  ;  Scroggs,  4,  5.  In  the  court-baron,  as  well 
as  the  court-leet,  the  jury  made  presentment ;  ib.,  24. 

5  Scroggs,  8  to  11. 
*ld.,  24  seq. 

:  Maurer,  Markenverfassung,  §2101,  102. 


Physical  and  Social  Factors  in  Constitutional  Law.     163 

mimity  analogous  to  the  tribal  condition,  as  illustrated  in 
the  pages  of  Seebohm's  excellent  production  on  the  English 
Village  Community.1  It  has  been  called  a  group  of  clans- 
men.2 The  seventh  century  West-Saxon  "tun"  or  "ham" 
"  was  in  reality  a  manor  in  the  Norman  sense  of  the  term — 
an  estate  with  a  village  community  in  villenage  upon  it 
under  a  lord's  jurisdiction."3 

Here  we  see  the  spectacle  of  demos-  coming  up,  as  it 
were,  from  the  land,  from  the  soil.  We  see  it  struggle  into 
the  condition  of  yeomanry.  We  observe  it  gain  momentum, 
through  the  rise  of  municipal  centers  out  of  the  midst 
of  the  village  life,  by  the  very  aggregation  of  that  life. 
We  note  the  consequent  growth  of  barter  and  the  spread 
of  commerce,  and  the  expansion  of  thought  and  court  pro- 
cedure, learning  and  literature  through  priestly  influence; 
and  as  these  break  down  the  conservation  of  the  village 
group,  destroy  its  communal  rights  and  disintegrate  the  little 
groups  in  the  formation  of  national  unity,  the  king  grows 
before  our  eyes  and  the  land  loses  its  antagonistic  divisions ; 
courts  in  eyre  become  the  resort  of  the  larger  suitors,  and 
the  manor  courts  become  the  modus  operandi  for  enforcing 
the  multitudinous  customs  of  the  landholder.  The  commerce 
that  the  Hanseatic  League  represents,  recognized  by  the 
potentates  of  the  land,  swells  the  sum  of  contractual  trans- 
actions, and  courts  of  pipowder  give  justice  to  suitors  while 
"the  dust  is  still  on  their  feet."4     Hanseatic  or  commercial 

1  Seebohm,  Eng.  Village  Community,  Chap.  IX. 

2  Howard,  Local  Cons.  Hist.  U.  S.,  10  seq. 

3  Seebohm,  ubi  supra,  147  ;  cf.  Gomme,  The  Village  Community,  Chap. 
III. 

4Scrutton  says  "the  court  of  pipowders  in  1478  was  a  court  that  sat 
from  hour  to  hour  administering  justice  to  dealers  in  times  of  fairs  ; 
according  to  Coke,  it  was  to  secure  '  speedy  justice  for  advancement  of 
trade,'  and  there  might  be  such  a  court  by  custom  without  either  fair  or 
market."  Roman  Law  and  the  Law  of  England,  Part  II.,  Chap.  XIV. 
He  also  mentions  other  merchants'  courts,  where  justice  was  speedily 
administered,  and  by  which  contracts  among  merchants  were  speedily 
enforced,  such  as  courts  of  the  mayor  of  the  staple,  similar  courts  being 


164     An  Introduction  to  the  Study  of  the  Constitution. 

courts  likewise  add  to  the  expression  of  commercial  customs. 
The  manor  eventually  becomes  reduced  in  importance  as 
family  and  individual  importance  increases.  The  growth  of 
the  community  involves  the  spread  of  individualism.  Free- 
dom is  the  outcome  of  political  gronih. 

The  manor  found  its  way  into  American  political  life  with 
the  advent  of  the  colonists,1  but  it  had  ceased  to  contain 
bondsmen  at  that  date.  The  indefinite  service  of  villenage 
became  reduced  to  a  definite  service,  the  holdings  developed 
into  fixed  rights  of  tenure,  mostly  copyholds,  with  fixed 
hereditary  succession,  rights  of  common,  etc.,  showing  the 
outcome  of  developed  landholding. 

Another  form  in  which  the  early  community  enlarged  and 
grew  was  the  township,  a  term  which  in  the  western  portion 
of  the  United  States  stands  for  congressional  divisions  of 
territory,  divided  into  sections  and  arranged  for  the  con- 
venience of  ascertaining  and  describing  localities,  thus  illus- 
trating the  most  efficient  and  reliable  method  of  dividing 
territory  for  purposes  of  landholding  ever  devised.  The 
term  now  also  stands  for  political  subdivisions  of  counties 
having  a  greater  or  less  extensive  power  of  self-government.2 
Its  origin  has  been  traced  to  the  clan  or  household.  The 
name  shows  its  continuity  with  the  earliest  landholding 
community ;  it  came  from  zaun,  tun,  hedge.3  Suffixes  like 
ing,  as  already  shown,  are  relics  of  this  early  holding  After 
a  community  of  this  nature  had  developed  an  independent 
jurisdiction  it  became  known  as  a  tunscipe,  that  is,  the  circle 
or  jurisdiction  of  the  tungemot.  Grimm  looks  upon  the 
early  use  of  the  term  as  synonymous  with  praedium,  villa. 


held  at  Bruges,  Antwerp,  etc.  Ibid.  For  ancient  type  of  merchant 
courts  and  remedies,  cf.  Meier  and  Schomann,  Att.  Process,  pp.  636,  637; 
see  also  p.  72  ;  Leist,  Graeco-Ital.  R.  Gr.,  pp.  154,  507,  552. 

'Old  Maryland  Manors,  First  Historical  Series  Johns  Hopkins  Univer- 
sity Studies,  Art.  VII.     See  also  same  Series,  4th  Vol.,  16  seq. 

2  Howard,  Local  Const.  Hist.,  etc.,  Chaps.  II.,  III.  and  IV. 

3  Howard,  supra,  Chap.  I.,  Sec.  III. 


Physical  and  Social  Factors  in  Constitutional  Law.     165 

Eventually  he  says  it  came  to  signify  the  later  city.1  The 
officers  of  the  township  were  the  gerefa  or  head  man,  the  bydel 
or  messenger,  and  the  tithingman.  In  the  free  township 
these  were  chosen  by  the  freemen,  in  the  dependent  township 
they  were  appointed  by  the  lord.2  The  manor,  it  has  been 
contended,  was  merely  the  township,  territorially  and  person- 
ally under  new  judicial  and  economical  conditions.3  It  was 
so,  however,  in  this  sense  that  both  had  expanded  a  new 
meaning.  Littleton  could  say  that  every  borough  is  a  town.4 
By  a  grant  of  a  town  or  village,  manor  land,  pasture,  meadow 
and  other  things  might  pass.5  So  by  the  term  manor  divers 
towns  might  pass.0  Bracton  distinguished  between  a  "  man- 
sio  "  and  a  "  villa,"  and  said  that  a  villa  consisted  of  more 
than  one  aedificium?  A  manor,  manorium,  he  said,  may  com- 
prise several  adjoining  buildings,  or  villas  or  hamlets  adjacent 
to  each  other.8 

Hundreds  appear  in  the  statutes  of  England  as  the  regular 
sub-districts  of  the  county  only  after  the  tenth  century.9 
They  represent,  however,  the  old  Germanic  division  of  the 
military  system,  and  antedate  that  period.10  After  settlement 
the  name  became  applied  to  a  district  which  had  to  provide  a 
hundred  men  for  the  militia.11  It  is  most  likely  that  the 
signification  of  the  term  is  a  result  of  Roman  importation, 
whose  divisions  of  centuries  were  well  known.  The  tribal 
constitution  was  antagonistic  to  numerical  divisions,  and  the 
early  employment  of  this  term  shows  that  it  was  employed 

'Jacob  Grimm,  Deutsche  Rechtsalterthlimer,  534. 

2  Howard,  supra,  21.  3  Howard,  supra,  27. 

4Litt.,S.  171. 

5  Coke,  Litt.,  5a;  Shepherd,  Touchstone,  92a. 

6 Coke,  Litt.,5a;  58a. 

7 Lib.  IV.,  c.  31,  fol.  211. 

*Ibid.,  fol.  212.     See  also  Lib.  V.,  c.  27,  fol.  434. 

9Grneist,  History  of  the  English  Constitution,  Vol.  I.,  47.  See  for  the 
different  opinions  current  regarding  the  meaning  of  the  term,  Howard, 
Local  Const.  Hist.  U.  S.,  Chap.  V.,  Sec.  II.,  252  seq. 

10Gneist,  supra  ;  Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.,  §45. 

11  Gneist,  supra. 


166     An  Introduction  to  the  Study  of  the  Constitution. 

without  any  definite  regard  to  number.1  It  represented  no 
doubt  a  jurisdictional  unit,  and  in  that  respect  is  affiliated 
to  the  earliest  village  organization.2  Stubbs  says  that  the 
union  of  a  number  of  townships  for  the  purpose  of  judicial 
administration,  peace  and  defense  formed  what  is  known  as 
the  hundred  or  wapentake:'  It  had  its  head,  its  gemote.*  It 
had  a  constitution  more  nearly  allied  to  a  political  form  than 
either  the  tun  or  the  manor.  It  was  compared  to  the  Roman 
pagus  by  Tacitus,5  and  it  has  been  compared  to  the  Greek 
phratriaf'  It  never  developed  into  a  city,  except  in  a  form 
next  to  be  considered.  The  Roman  pagus  comprised  villages 
of  rude  abodes,  with  adjoining  fields  or  pastures  and  a  place 
of  refuge  in  case  of  danger.7  The  original  assemblages  of 
the pagi  were  primitive,  but  as  they  spread  out  with  increase 
of  population  by  adoption  or  birth,  and  market  days,  sacri- 
ficial occasions  or  enlarged  assemblages  were  introduced, 
they  took  on  a  more  definite  form,  which  produced  eventu- 
ally in  Rome  the  city.8  The  growth  of  the  city  from  this 
source  in  early  Rome  is  shown  by  Marquardt.     Within  the 

1  See  Wciitz,  Deutsche  Verfassungsgeschichte,  Vol.  I.,  148  seq.;  Howard, 
Local  Const.  Hist.,  254 ;  Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.,  §45. 
2 Howard,  supra,  256.  3 Const.  Hist,  of  Eng.,  Vol.  I.,  §45. 

4 Stubbs,  supra,  §§45,  46;  Howard,  supra,  258,  259. 
BSee  Howard,  256. 

6  Howard,  supra.     But  quaere  ? 

7  Marquardt,  Romische  Staatsverwaltung,  Vol.  I.,  3,  4  seq.  The  oldest 
Italian  people  did  not  live  in  cities,  but  in  tribal  communities  or  pagi 
{gauen)  in  which  the  abodes  and  homesteads  lay  scattered  ;  they  were 
provided  usually  with  a  place  of  refuge  and  defense  {burg)  to  which  the 
inhabitants  of  such  pagi  would  flee  for  safety ;  and  the  burg  was  also  a 
place  of  safety  for  the  sacred  possessions  and  idols.  Later  on  the  place 
occupied  by  the  commune  was  called  pagus,  and  in  time  it  became  the 
center  of  a  larger  territorial  and  social  unit.  In  earlier  days  this  shifting 
commune  was  an  integral  part  of  a  larger  community  (civitas,  populus) 
which  had  its  market,  legislative,  judicial  and  sacrificial  gatherings.  The 
places  where  these  were  held  in  many  instances  developed  into  cities,  and 
superseded  the  pagi  in  the  same  locality.  Marquardt,  loc.  cit.  For 
further  phases  of  development  see  post,  p.  169.  Cf.  Duruy,  Rome,  Vol. 
II.,  Part  I.,  p.  249. 

8  Marquardt,  supra,  4,  5. 


Physical  and  Social  Factors  in  Constitutional  Law.     167 

city's  environs  lay  the  vici  and  castella ;  a  vicus  comprises  a 
complex  of  buildings,  a  street  or  quarter  (like  modern 
wards),  and  village  groups  without  the  the  city's  enclosure 
in  which  the  houses,  unlike  the  pagus,  were  heaped  together.1 
Its  inhabitants  usually  comprised  owners  of  village  land, 
communities  whose  domain  was  cultivated  by  peasants 
(coloni),  slaves  (servi)  and  manumitted  persons.  These  vil- 
lage communities  had  their  own  temples  and  altars,  a  common 
ownership,  adopted  regulations  in  village  assemblages,  and 
elected  leaders  or  heads  (magistri)  who  saw  that  the  customs 
of  the  village  were  observed.  The  castella  or  castra  seem  to 
have  resembled  these  communities.2  The  hundred  did  not 
develop  in  this  manner.  It  became  a  part  of  that  more 
sparsely  or  less  densely  populated  part  of  the  land  which 
became  amenable  to  a  larger  discipline,  such  as  the  king  or 
earl  might  exercise.  It  became  lost  in  the  county  and 
national  organization. 

The  "  burh,"  "  byrig,"  "  borough,"  had  its  origin  in  the 
need  of  military  protection.  A  hill  with  a  rampart  of  earth 
or  a  strong  wall,  perhaps  a  palisade,  was  sufficient  protection 
against  the  attacks  of  robber  bands.  Such  protection  was 
sought  by  the  neighboring  villagers,  whether  freeholders, 
tenants  or  serfs.  They  were  likewise  the  resort  of  landless 
men,  handicraftsmen  and  small  tradespeople,  who  lived 
amongst  the  servants  and  followers  of  the  landlords.  The 
differences  between  the  people  thus  crowded  together  entailed 
a  larger  and  more  detailed  supervision  through  a  gerefa." 
There  was,  however,  nothing  in  this  approaching  to  the 
modern  idea  of  a  corporation,  with  a  similar  legal  personality, 

1  Marquardt,  supra,  8. 

-Ibid.  9.  See  also  Leist,  Graeco-Ital.  R.  G.,  Book  I.,  Chap.  III.,  g24. 
The  inquirer  will  find  strong  points  of  analogy  between  the  early  Greek 
and  Latin  forms  mentioned  by  Leist  in  this  Chapter  III.  and  the  early 
forms  elsewhere  prevailing  in  Europe  at  a  similar  stage  of  development. 

3Gneist,  History  of  the  English  Constitution,  Vol.  I.,  53;  Chalmers, 
Local  Government,  64  seq.  Cf.  Schrader,  Sprachv.  u.  Urg.,  p.  583; 
Leist,  Graeco-Ital.  R.  G.,  §19. 


168     An  Introduction  to  the  Study  of  the  Constitution. 

a  common  seal,  or  its  perpetual  succession.  "Even  London, 
under  its  portreeve  and  bishop,  the  two  officers  who  seemed 
to  give  it  a  unity  and  identity  of  its  own,  was  only  a  bundle 
of  communities,  townships  and  parishes,  each  of  which  had 
its  own  constitution."  As  time  went  on  they  acquired 
further  privileges  from  the  overlord  or  king,  of  which  the 
most  important  was  the  firma  burgi,  that  is,  the  right  to  pay 
a  fixed  sum  by  way  of  compensation  for  taxes,  and  to  assess 
and  pay  that  sum  themselves.  The  further  growth  of  the 
towns  into  cities  in  England  is  shown  by  Stubbs  and  Chal- 
mers.1 Even  after  the  cities  were  recognized  as  distinct 
unities,  it  was  for  a  long  time  the  same  kind  of  unity  as  that 
of  the  county  and  hundred.  They  had  their  folk-moot, 
answering  to  the  shire-moot ;  outside  their  ward-moot,  answer- 
ing to  the  hundred  court;  their  hustings  court.  London, 
under  the  privileges  conferred  upon  it,  had  a  sheriff,  a  reeve 
{gereja)  of  its  own,  and  justiciar;  its  citizens  were  not  to  be 
called  before  any  court  outside  of  the  city  walls,  were  freed 
from  danegeld,  from  scot  and  lot,  from  responsibility  for  the 
murder-fine  and  obligation  to  trial  by  battle,  from  toll,  etc. 
Its  citizens  possessed  their  lands,  the  common  lands,  etc.- 
Kingly  control  prevented  the  cities  from  obtaining  the  same 
place  they  had  obtained  in  Greek  and  Roman  history,  though 
at  times,  as  among  the  municipalities  in  Italy,3  and  among 
the  Hansa  towns,  such  as  Liibeck,4  they  attained  a  power 
equal  to  that  of  kingly  rulers. 

In  the  course  of  the  development  of  shire  and  nation  other 

1  Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.,  404  ;  Chalmers,  Local  Govern- 
ment, 65  seq. 

2  Stubbs,  supra,  405.  For  a  similar  course  of  development  of  Continental 
cities,  see  Maurer,  Stadtverfassung  ;  Arnold,  Verfassungsgeschichte  der 
deutschen  Freistildte ;  same,  Geschichte  des  Eigenthums  in  deutschen 
Stadte  ;  Gengler,  Deutsche  Stadtrechte  ;  Heusler,  Ursprung  der  deutschen 
Stadtverfassung;  Woolsey,  Political  Science,  Vol.  I.,  §§152,  153. 

3  See  Woolsey,  Political  Science,  Vol.  II.,  §§182,  183  ;  Freeman,  Comp. 
Politics,  131. 

4 See  Helen  Zimmern,  The  Hansa  Towns,  Period  II.,  Chaps.  I.,  II.; 
Sehwebel,  Deutsches  Burgerthum,  p.  81. 


Physical  and  Social  Factors  in  Constitutional  Law.     169 

local  unities  took  form,  such  as  tithings,  parishes,  etc.,  which 
need  not  be  elaborated  here.  They  bore  the  same  evidences 
of  social  growth  as  other  political  forms  within  the  county 
domain.1  They  also  trace  their  analogies  in  early  Greek  and 
Roman  history  up  to  a  certain  point,  that  point  which  marks 
the  distinction  between  the  course  of  ancient  and  modern 
political  development.  It  is  a  growth  likewise  making  for 
individual  freedom  and  fraternal  association. 

The  county  or  shire  has  been  in  its  beginnings  compared 
to  the  Greek  jrfiyle*  the  Latin  pagus,  the  German  gau,  the 
Danish  syssel,  that  is,  the  tribe  looked  upon  as  occupying  a 
certain  territory.3  The  history  of  development  of  all  of  them 
is  alike  to  a  certain  point  everywhere.  In  Rome,  in  early 
days,  pagus  had  already  come  to  signify  a  collection  of 
houses  and  villages  lying  scattered  over  an  expanse  of  terri- 
tory of  indefinite,  though  more  or  less  limited  range,  which 
contained  a  burg  (arx,  castcllum),  to  which  the  inhabitants 
fled  for  refuge,  and  which  contained  the  idols  of  the  pagus.* 
The  place  of  refuge  was  also  called  pagus?  which  was  derived 
by  the  Latins  from  the  Greek  nfj/j,  village  communities  that 
have  settled  in  the  neighborhood  of  springs ;  by  others,  how- 
ever, its  origin  was  ascribed  to  communities  of  joint  land- 
ownership.'5  Afterwards,  with  the  lapse  of  time,  changes 
came:  the  land  became  populated  by  larger  communities 
and  more  numerous  groups,  and  incidents  of  fellowship, 
fraternization    and  collective  aggregation   accumulated;   so 

'See  Howard,  Local  Const.  Hist.,  Chap.  I.,  23  to  49  ;  Saxon  Tithing- 
men  in  America,  Johns  Hopkins  University  Studies  in  History,  Vol.  I., 
Art.  IV.;  Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.,  Chap.  V.;  The  English 
Parish  in  America,  Johns  Hopkins  University  Studies  in  Hist.,  Vol. 
III.,  Art.  IV.;  Freeman,  Comp.  Politics,  Note  72  to  Lect.  III. 

2  Howard,  Local  Const.  Hist.,  Chap.  VI.,  289.  Phyle  instead  of  phule 
is  the  orthography  of  the  German  translators.  Leist,  Graeco-Ital.  It.  G., 
§18;  Platner,  Beitrage,  Chaps.  I.,  II.  and  III. 

3 Freeman,  Comp.  Politics,  Lect.  III.,  118.  Cf.  Leist,  Graeco-Ital. 
R.  G.,  Book  I.,  Chap.  III. 

4Marquardt,  Romische  Staatsverwaltung,  Vol.  I.,  4. 

5  Ibid.  "  Ibid.     See  also  p.  16G  ante. 


170     An  Introduction  to  the  Study  of  the  Constitution. 

that  in  the  days  of  the  Emperors  the  pagus  had  become 
a  geographical  district,  in  which  hamlets,  manors  and 
agricultural  communities  lay,  but  in  which  the  common 
place  of  assemblage  was  preserved,  in  so  far  as  that  had 
not  become  an  independent  community,  as  a  central  village 
or  hamlet,  obtaining,  as  it  grew  in  denseness  and  size, 
the  character  of  a  city.1  The  Continental  pagus,  shire, 
gau,  or  by  whatever  other  name  it  may  be  called,  was 
not  a  clearly  defined  jurisdiction  so  long  as  a  kingly  or 
national  government  had  not  yet  developed.  Even  after  it 
had  developed,  the  district  was  slow  in  becoming  definitive  of 
a  certain  jurisdiction.  And  in  its  later  day  the  jurisdiction 
was  meagre,  especially  after  the  jurisdiction  of  its  immediate 
ruler,  the  comes  or  ealdorman,  had  become  superseded  by  the 
courts  and  the  peace  of  the  king."  In  the  works  of  one  of 
the  best  historians  of  modern  times,3  the  shire  is  shown  to 
not  be  identical  with  the  ealdorman's  jurisdiction.  It  was, 
however,  the  province  under  the  supervision  of  a  shireman 
or  reeve,  whose  presence  gives  "  the  clue  to  the  real 
ground  of  the  shire  system."  Though  its  main  purposes 
were  political,  its  original  purpose  was  strictly  financial. 
The  king's  reeve  (gerefa),  like  the  other  reeves,  was  an 
agent  through  whom  the  king  received  what  was  owing 
to  him.  The  reeve  may  have  represented  the  immediate 
lord  as  well,  but  as  a  king's  reeve  he  received  a  portion  of 
the  proceeds  of  the  shire-court  which  fell  to  the  Crown, 
"and,  by  a  natural  extension  of  this  duty,  the  various  sums 
payable  within  the  limits  of  the  shire,  as  customary  dues, 
heriots,  and  the  like."  Each  shire  became  obliged  to  "pro- 
vide not  only  a  stated  number  of  men  for  the  fyrd,4  but  a 

'Marquardt,  Romische  Staatsverwaltung,  Vol.  I.,  12,  13. 

2  Cf.  Pollock,  Oxford  Lectures,  etc.,  "  King's  Peace." 

3  Green,  Conquest  of  England,  229. 

4  "  The  fyrd  was  .  .  .  composed  of  the  whole  mass  of  free  land-owners  who 
formed  the  folk  ;  and  to  the  last  it  could  only  be  summoned  by  the  voice 
of  the  folk-moot."  Conquest  of  England,  127.  It  was,  when  summoned,  the 
early  militia,  and  was  the  outcome  of  the  duty  to  support  the  community 


Physical  and  Social  factors  in  Constitutional  Law.     171 

stated  sum  by  way  of  compensation  for  the  revenue  which 
the  king  would  have  drawn  from  what  had  been  folk-lands 
within  its  bounds,  and  at  a  later  time  a  stated  number  of 
ships,  or  their  equivalent  in  'ship  money'."  The  gathering 
of  these  sums  was  the  duty  of  the  shire-reeve.  "His  busi- 
ness . . .  was  necessarily  judicial  as  well  as  financial,  for  half  of 
the  work  of  a  shire-court  came  to  consist  in  the  ascertain- 
ment, the  assessment  and  the  recovery  of  such  royal  dues,  as 
well  as  fines  and  forfeitures  owed  to  the  Crown;  and  from 
presiding  over  the  trial  of  this  class  of  cases,  the  shire-reeve 
could  not  fail  to  pass,  like  the  later  Barons  of  the  Exchequer, 
into  the  position  of  a  standing  judge  of  the  court."  The 
presence  of  the  ealdorman  and  bishop  was  rare  at  the  meet- 
ings of  the  shire-moot,  and  so  the  reeve  became  the  presiding 
officer,  and  the  court  became  the  sheriff's  court.  The  process 
of  growth  and  change  went  on  until,  by  the  organization  of  a 
king's  court,  with  itinerant  judges  to  hold  terms  of  court  of 
oyer  and  terminer  and  general  goal  delivery,  a  system  of  nisi 
prius  courts  was  evolved  which  superseded  the  county  or 
sheriff's  court  in  much  of  its  jurisdiction,  while  that  court 
obtained  an  essentially  different  jurisdiction.1  Such  a  de- 
velopment substantially  occurred  elsewhere  in  continental 
Europe.     And  the  county,  thus  started  on  its  way,  came  to 

and  its  lord  by  arms  for  defense,  etc.  See  Stubbs,  Const.  Hist,  of  Eng., 
Index,  Trinoda Necessitous  ;  Gneist,  Hist,  of  Eng.  Const.,  Index,  Trinoda 
Necessilas;  Maurer,  Hofverfassuug,  Vol.  I.,  §143;  Lappenberg,  Anglo- 
Saxon  Kings  (Bohn),  Vol.  II.,  398  ;  Stubbs,  Select  Charters,  pp.  153. 
281,  343,  359,  370,  457,  469;  Zoepfl,  D.  R.  G.,  Vol.  II.,  §36;  Grimm, 
Deutsche  Rechtsalterthiimer,  295 ;  Spencer,  Principles  of  Sociology, 
Part  IV.,  Chap.  IV.;  Part  V.,  Chap.  XVI. 

1  Cf.  Howard,  Const.  Hist.,  etc.,  Part  III.;  Stubbs,  Const.  Hist,  of  Eng., 
Vol.  I.,  §§126-129;  Gneist,  Hist,  of  the  Eng.  Const.,  Vol.  I.,  7,  43; 
Stephens,  Hist,  of  the  Criminal  Law  of  Eng.,  Vol.  I.,  Chap.  IV.;  Chal- 
mers, Local  Government,  Chap.  VI.;  Miurer,  Markenverfassung,  §105 
seq.;  same,  Hofverfassung,  Vol.  IV.,  §§056-719;  Waitz,  Deutsche  Ver- 
fassungsgeschichte,  Vol.  I.,  Chap.  XII.;  Vol.  II.,  Chap.  VI.;  Vol.  IV., 
Chap.  VIII.;  Vol.  V.,  Chap.  III.;  Vol.  VII.,  Chaps.  IX.,  X.;  Zoepfl, 
Deutsche  Rechtsgeschichte,  Vol.  II.,  §§37,  73e ;  Grimm,  Deutsche  Rechts- 
alterthiimer, pp.  749  seq. 


172     An  Introduction  to  the  Study  of  the  Constitution. 

the  United  States :  in  the  New  England  States  yielding,  in 
most  of  the  jurisdiction  it  elsewhere  obtained,  to  townships 
or  other  local  communities ;  or,  as  is  the  case  generally  in  the 
South  and  West,  evolving  into  a  definite  territorial  jurisdic- 
tion for  the  maintenance  of  law,  order,  roads,  bridges,  and 
property  rights  of  minors,  insane  persons,  the  estates  of 
deceased  persons,  etc.  In  the  Middle  States,  constituting 
part  of  what,  at  the  adoption  of  the  Constitution,  was  known 
as  the  Northwest  Territory,  a  mixed  government  divided 
between  township  and  county  exists.1  The  shire  or  scir 
became  the  comte  (county)  when  the  Normans  came  to  Eng- 
land. It  represented  the  outspreading  of  towns  in  England 
and  also  in  Virginia  and  Massachusetts,  and  it  involved  the 
spread  and  increase  of  land  and  industrial  groups  or  commu- 
nities.2 Beside  this  it  represented  the  shaping  of  a  local 
subdivision,  constituting  part  of  a  larger  governmental  terri- 
torial whole,  and  its  developed  organization  was  not  only  for 
the  purpose  of  subserving  the  interests  of  its  territorial 
inhabitants,  but  was  also  instrumental  in  preserving  and 
furthering  the  integrity  of  the  superior  political  power.  The 
decisions  of  the  Supreme  Court  of  the  United  States  assume 
that  the  preservation  of  a  republican  form  of  government  in 
the  States  (constituting  part  of  that  nation)  involves  the 
maintenance  of  local  subdivisions.3 

We  have  now  obtained  in  outline  a  view  of  the  expansion 
of  the  primal  political  constitution  into  a  larger  entity — an 
entity  which  in  modern  times,  though  it  may  vary  in  given 
areas  such  as  are  represented  respectively  by  Great  Britain, 
Switzerland,  France,  Germany,  Russia,  the  United  States, 

!See  Howard,  Local  Const.  Hist.,  Part  III. 

2  Howard,  p.  312,  and  note  1  ;  Johns  Hopkins  Historical  Studies,  Vol. 
III.,  177,  368;  Vol.  II.,  Art.  X.,  437;  Bryce,  American  Commonwealth, 
Vol.  I.,  Chap.  XL VIII.;  Hannis  Taylor,  Origin  and  Growth  of  the  English 
Constitution,  Vol.  I.,  Chap.  III. 

3  As  was  said  in  Texas  v.  White,  7  Wall.  700.  See  what  was  said  in 
Loan  Ass'n  v.  Topeka,  20  Wall.  655,  663;  State  v.  Denny,  21  N.  E. 
Reporter,  274,  277. 


Physical  and  Social  Factors  in  Constitutional  Law.     173 

etc.,  has  become  a  more  permanent  and  more  cohesive  and 
better  organized  political  organism  than  existed  in  ancient 
times ;  and  we  are  confronted  with  the  need  of  explaining 
this  remarkable  difference. 

The  difference  has  been  ascribed  to  the  system  of  repre- 
sentation which,  it  is  claimed,  is  peculiar  to  Germanic 
nations.1  It  must  be  conceded,  however,  that  if,  as  is 
claimed,  the  "township"  is  the  "  primordial  cell " 2  of  our 
modern  political  structure,  it  was  also  such  in  the  develop- 
ment of  ancient  political  organisms.  The  conceptions  of  a 
city,  state  and  a  nation  possess  common  elements  developed 
up  to  a  certain  point ;  they  possess  similar  phases  of  the 
earliest  savage  group,  and  that  of  the  gens,  the  tribe,  the 
township.3  The  earliest  form  of  this  government  by  repre- 
sentation is  supposed  to  exist  in  the  assemblage  of  the 
German  mark.  It,  however,  long  antedated  the  period  of 
the  discovery  of  the  mark.4 

The  assemblage  of  individuals  for  the  disposition  of  such 
business  as  concerns  the  mass  affected,  is  to  be  sought  for 
in  its  earliest  forms  in  that  state  of  humankind  nearest 
approaching  the  gregarious  brute.  If  any  things  were  then 
conned  over  and  deliberated  upon  they  were  apt  to  be  very 
few  and  very  simple  things,  concerning  more  especially  sen- 
sual desires,  sustenance  or  protection  of  the  mass,  attended  by 
the  whole  body,  or  the  adult  males  of  the  body,  in  an  informal 
and  sudden  manner,  upon  the  spur  of  the  occasion.5  Later  on 
the  assembled  individuals  would  fall  more  or  less  clearly  into 
two  divisions  :  the  elder,  the  stronger,  the  more  sagacious, 
who  formed  the  smaller  part  and  who  carried  on  the  discus- 
sion ;  and  the  younger,  the  weak,  the  dependent,  the  undis- 

1  Piske,  American  Political  Ideas,  Chap.  II.,  70  seq.;  same,  Beginnings 
of  N.  E.,  28;  Green,  Making  of  England,  170  ;  Hosmer,  Samuel  Adams, 
Chap.  XXIII. 

2  Hosmer,  loc.  cit.     Cf.  Green,  Making  of  England,  175. 
3 Freeman,  Comp.  Politics,  Lect.  III.,  134. 

4  Cf.  Spencer,  Principles  of  Sociology,  Part  V.,  Chap.  IX. 

sCf.  Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,Chap.  V. 


174     An  Introduction  to  the  Study  of  the  Constitution. 

tinguished,  constituting  the  larger  portion,  became  listeners.1 
In  New  Zealand,  we  are  told,  the  government  was  conducted 
in  accordance  with  public  opinion  expressed  in  general 
assemblages.2  Among  the  Tahitians  public  assemblies  were 
held,  and  the  king  could  undertake  no  affair  of  national 
importance  without  consulting  the  landholders.3 

Among  the  hill  tribes  of  India,  "assemblies  of  the  whole 
tribe,  or  any  of  its  subdivisions,  are  convened  to  determine 
questions  of  general  importance."4  Among  the  aborigines  of 
Victoria,  when  a  tribe  plans  revenge  on  another  tribe  sup- 
posed to  have  killed  one  of  its  members,  "  a  council  is  called 
of  all  the  old  men  of  the  tribe  ...  the  women  form  an  outer 
circle  around  the  men.  .  .  .  The  chief  (a  native  of  influence) 
'opens  the  council'."5  Similar  phenomena  were  found 
among  the  early  Germans  by  Tacitus.6  "No  controlling 
force  at  first  exists  save  that  of  the  aggregate  will  as  mani- 
fested in  the  assembled  horde."  Later,  "leading  parts  in 
determining  this  aggregate  will  are  inevitably  taken  by  the 
few  whose  superiority  is  recognized." 7  Among  these  control- 
ling few,  some  one — perhaps  the  head  of  the  modern  group, 
perhaps  some  other — eventually  becomes  predominant.8 

Out  of  these  early  forms  of  government,  if  they  may  be 
called  such  ;  out  of  these  spontaneous  gatherings  for  mutual 
care  and  protection,  at  first  little  differing  from  that  of  gre- 
garious herds  of  cattle,9  evolved  the  representative  form  of 
government  now  extant. 

From  this  developed  the  kingly,  later  the  executive  agency 
of  government,  and  the  legislative,  the  judicial.10  And  the 
English  witenagemot  evolved  in  the  same  way.11      Green  says 

1  Of.  Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Chap.  V. 

2Ibid.  3Ibid.  4Ibid.  5  Ibid. 

6 Ibid.-,  Tacitus,  Germania,  11,  12.  "'Ibid.  8 Ibid. 

9 See  Lindsay,  Mind  in  the  Lower  Anhnals,  Vol.  I.,  Chap.  XXL; 
Romanes,  Animal  Intelligence,  Index,  "Cooperation." 

10Spencer,  Principlesof  Sociology,  Vol.  II.,  Part  V.,  Chaps.  VI.  to XIII. 

"Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.,  Chap.  XL,  §123  seq.;  Green, 
infra;  same,  Conquest  of  England,  Chap.  I.,  35;  Gneist,  Hist,  of  the 
Eng.  Const.,  Chaps.  XVI.,  XVII. 


Physical  and  Social  Factors  in  Constitutional  Law.     175 

that  after  the  end  of  Roman  rule  in  England,  and  with  the 
settlement  in  that  land  of  the  Saxon  conquerors,  .  .  .  "the  form 
of  the  people  was  wholly  military.  The  folk-moot  was,  in 
fact,  the  war  host,  the  gathering  of  every  freeman  of  the  tribe 
in  arms.  The  head  of  the  folk,  whether  ealdorman  or  king, 
was  the  leader  whom  the  host  chose  to  command  it.  Its 
witenageniot,  or  meeting  of  wise  men,  was  the  host's  council 
of  war;  the  gathering  of  those  ealdormen  who  had  brought 
the  men  of  their  villages  to  the  fields."1  In  this  portrayal 
of  what  occurred  in  this  later  day,  we  note  a  development  of 
what  is  founded  in  the  circumstance  of  social  aggregation  in 
its  most  primitive  form. 

Let  us  observe  this  organon  of  government  as  it  evolves. 
" Among  the  members  of  primitive  groups,  slightly  unlike  in 
various  ways  and  degrees,  there  is  sure  to  be  some  one  who 
has  a  recognized  superiority."  This  superiority  is  of  several 
kinds,  due  to  age,  headship,  prowess,  etc.  The  headmen  of 
the  Khonds  are  usually  descended  from  some  daring  adven- 
turer, so  are  the  chiefs  of  the  highland  tribes  of  Central 
Asia.  The  traditions  of  tribal  life  extant  in  more  developed 
organizations,  such  as  the  Mexicans  of  the  western  hemi- 
sphere, as  well  as  the  early  Greeks  and  other  ancient  mon- 
archies, indicate  the  same  thing.2  The  Norwegian  sea-kings, 
as  well  as  the  German  principes  whom  Tacitus  spoke  of, 
were  alike  the  heads  of  groups  or  associations  of  early  house- 
holds, who  had  developed  beyond  the  most  primitive  condi- 
tions, in  consequence  of  the  multiplication  of  numbers,  the 
pursuit  of  sustenance,  the  defense  of  home  and  territory,  and 
the  following  of  war.3     The  English  king  came  from  the 

'Green,  Making  of  England,  Chap.  IV.,  167. 

2  Cf.  Spencer,  Principles  of  Sociology,  Part  V.,  Chap.  VI.,  §472  ;  Free- 
man, Comp.  Politics,  Lect.  IV.;  Woolsey,  Political  Science,  Vol.  I.,  §142  ; 
Waitz,  D.  V.  G.,  Vol.  I.,  Chap.  VIII.:  Vol.  II,  Chap.  II.;  Stubbs,  Const. 
Hist,  of  Eng.,  Vol.  I.  (see  Index,  "King")  ;  Gneist,  Hist,  of  the  Eng. 
Const.,  Vol.  I.,  Chaps.  I.  and  II.;  Landau,  Die  Territorien,  312  seq.; 
Leist,  Graeco-Ital.  R.  G.,  Book  I.,  §§22,  23. 

3  Landau,  Die  Territorien,  312,  313. 


176     An  Introduction  to  the  Study  of  the  Constitution. 

Anglo-Saxon  cyning,  who  was  analogous  to  the  Icelandic  hong, 
Icon,  honung  (German  honig),1  and  represented  a  person  of  a 
superior  group  or  household.2  In  England  and  France  the 
cyning  became  a  national  leader,  a  king;  and  in  this  way  the 
assembly  of  which  he  was  the  leading  element  became  of 
greater  and  of  national  importance.  With  the  settlement  of 
the  Saxon  conquerors  upon  the  British  Isle  the  king  ceased 
to  be  a  mere  war  leader,  but  tended  to  become  a  national 
representative.  He  represented  in  this  national  expansion  the 
need  which  the  various  groups  of  conquering  warriors  felt 
and  territorial  demands  showed  forth  of  the  need  of  a  col- 
lective head.  The  rise  and  development  of  kingship  thus 
"represents  the  national  as  distinguished  from  the  tribal 
stage  of  political  development."4 

The  assemblage  of  the  early  groups  discharged  all  func- 
tions religious,  judicial  and  legislative,  as  well  as  executive 
in  their  nature.  The  idea  of  separating  them  never  formed 
an  element  of  thought  until  the  spread  of  population,  and  its 
aggregation  into  new  and  varied  forms,  exhibited  on  the  one 
side  local  assemblages,  and  on  the  other  side  the  independent 
activity  of  a  larger,  more  central  body.  The  disinclination 
to  attend  such  assemblages  is  the  characteristic  of  all  people, 
ancient  as  well  as  modern.  It  is  likely  to  be  kept  up  only 
by  those  whose  profit  lies  in  keeping  it  up.  The  local 
assemblages  retained  their  character  because  the  local  juris- 
diction enforced  attendance.  The  larger  assemblage,  created 
by  the  same  agencies  that  rendered  a  large  central  assemblage 
possible,  obtained  a  larger  field  as  it  expanded  territorially. 
All  this  the  consolidation  already  mentioned  rendered  in- 

1  Landau,  Die  Territorien,  312,  318;  Grimm,  Deutsche  Rechtsalter- 
thiimer,  230. 
8  Landau,  loc.  cit. 

3  Of.  Waitz,  Deutsche  Verfassungsgeschichte  ;  and  Stubbs,  Const.  Hist, 
of  Eng.  See  also  Gneist,  Hist,  of  the  Eng.  Const.;  Green,  Making  of 
England,  Chap.  IV.  Spencer,  Principles  of  Sociology,  demonstrates  this 
fact. 

4  Freeman,  Comp.  Politics,  Lect.  IV.,  165.  Cf.  Leist,  Graeco-Ital. 
R.  G.,  Book  I.,  Chap.  III.,  pp.  105,  106. 


Physical  and  Social  Factors  in  Constitutional  Law.     177 

evitable  in  some  form.  And  the  judicial  functions  became 
relegated  to  a  different  and  distinct  body  as  this  central 
assemblage  became  not  only  more  extensive  in  numbers,  but 
also  as  its  duties  became  more  expanded,  ramified  and 
onerous.  Thus  the  judiciary  of  England,  France  and  Ger- 
many, as  well  as  other  national  growths  at  a  similar  stage 
of  development,  became  an  independent  department  of  gov- 
ernment, in  which  eventually  the  chief  or  king  came  to  have 
no  hand  or  jurisdiction.  And  the  legislative  functions 
likewise  tended  to  become  segregated,  at  last  becoming 
merged,  in  Great  Britain,  in  a  body  sitting  in  two  chambers, 
both  of  which  were  essential  to  the  discharge  of  its  functions. 
It  was,  however,  still  more  or  less  closely  connected  with  the 
chieftainship  or  king,  its  duties  being  of  that  nature  which 
rendered  the  king's  cooperation  and  supervision  of  greater 
importance  and  more  needful  than  it  could  be  in  the  dis- 
charge of  judicial  functions.1 

Much  of  this  growth  was  not  peculiar  to  modern 
nations;2  nor  is  the  idea  of  representation  contained  in  it 
peculiar  to  modern  peoples.  The  chief  in  earlier  days  was 
not  infrequently  elective.3  The  central  assemblage,  as  it 
concentrated  power  in  its  hands,  whether  in  the  Palestinian 
synhedrin,  the  Spartan  gerusia,  the  Greek  areopagus,  or  Ro- 
man senate,  was  none  the  less  representative  because  it  could 
fill  the  ranks  by  co-optation  among  its  own  class.4  The  rath 
or  council  of  medieval  cities  could  do  the  same  thing.5  The 
practice  of  co-optation  from  one's  own  class  comes  from  a 
very  widespread  and  deeply-seated  disposition,  in  virtue  of 

1  See  works  of  Stubbs,  Gneist,  Spencer,  Freeman,  Waitz,  referred  to  in 
preceding  notes. 

2  Cf.  Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Chaps. 
VI.-XI. 

3 Spencer,  Principles,  etc.,  Vol.  II.,  Part  V.,  Chap.  VI.;  Woolsey, 
Political  Science,  Vol.  I.,  §169,  pp.  520-528. 

4  Mayer,  Rechte  der  Israeliten,  Roemer  u.  Athener,  Book  II.,  Chap. 
III. 

5  Arnold,  Verfassungsgeschichte  der  deutschen  Freistiidte,  Vol.  I.,  p. 
302 ;  Heusler,  Ursprung  der  deutschen  Stadtverfassung,  Chap.  V. 


178     An  Introduction  to  the  Study  of  the  Constitution. 

which  we  continue  and  prolong  a  position  in  which  we 
are  enabled  to  exercise  authority  over  others,  and  may  be 
found  illustrated  in  the  disposition  of  leaders  of  political 
parties  to  maintain  themselves  in  power. 

The  expansion  of  the  better  consolidated  national  organiza- 
tions of  modern  times  is  marked  by  the  tendency  of  the  latter 
to  retain  an  equilibrium  between  the  various  functions  of  the 
community.  It  may  be  in  many  respects  marked  by  social 
cataclysms,  such  as  the  overthrow  of  free  cities,  or  the  oppres- 
sion of  the  peasantry,  or  the  humiliation  of  the  nobility,  or  a 
French  revolution,  but  its  tendency  is  toward  a  harmonious 
solidarity.  Evidences  of  this  are  contained  in  the  simul- 
taneous expansion  of  the  manorial  holdings,  kingly  power, 
and  the  functions  of  the  central  assembly.  Further  evi- 
dences of  it  are  found  in  the  tendency  which  the  elements  at 
the  base  of  the  government  show  to  combine  against  excesses 
of  the  others — the  king  and  the  peasantry  against  nobles, 
nobles  and  the  peasantry  against  the  king,  king  and  nobles 
against  the  peasantry.1  Another  evidence  of  this  tendency 
to  an  equilibrium  is  aiForded  by  the  spread  of  commerce  and 
the  eifect  this  has  had  in  promoting  city  growth  and  country 
growth  in  connection  with  each  other,  and  also  national 
stability  in  relation  to  the  internal  parts  as  well  as  toward 
other  nations.  The  pursuit  of  science  has  likewise  afforded 
testimony  of  the  same  fact,  and  the  best  evidence  thereof  is 
contained  in  the  complex  yet  harmonious  workings  of  the 
English  Constitution  .2  The  clergy  have,  in  consequence,  been 
relegated  to  that  appropriate  place  wherein  they  may  promote, 
without  the  allurements  and  temptations  of  political  place,  the 
spiritual  welfare  of  their  disciples.  And  the  best  results  have, 
no  doubt,  been  attained  in  the  United  States  of  North  America.3 

1  The  histories  of  England,  France,  Germany,  Russia,  Rome,  Greece, 
Palestine,  Persia,  etc.,  offer  illustrations  of  this.  See  Draper's  Intel- 
lectual Development  of  Europe;  Buckle's  History  of  Civilization  in 
England. 

2Gneist,  Hist,  of  the  Eng.  Const.,  Chap.  LVIII. 

3  See  Piske,  American  Political  Ideas,  Chap.  III.,  but  cf.  Bryce, 
American  Commonwealth,  and  Maine,  Popular  Government. 


Physical  and  Social  Factors  in  Constitutional  Law.     179 

It  is  because  these  complex  wholes  are  so  much  the  crea- 
tures of  growth,  begotten  by  the  interchanging  influence  of 
reciprocal  or  conflicting  elements,  that  the  definition  of  nation 
must  be  faulty.1  Every  important  term  which  symbolizes 
the  parts  or  functions  of  the  political  organism  is  indicative 
of  growth  ;  thus,  as  we  have  seen,  king  or  chief  contains  evi- 
dences of  it.  So  does  the  term  parliament.  "  Describing  the 
assembling  of  '  citizens  at  the  sound  of  a  great  bell  to  con- 
cert together  the  means  of  their  common  defense,'  Sismondi 
says,  'this  meeting  of  all  the  men  of  the  state  capable  of 
bearing  arms  was  called  a  parliament'."2  It  was  originally, 
therefore,  the  early  war  council.3  We  have  seen  the  process 
of  growth  of  the  courts,  with  their  judges,  juries,  etc.,  the 
customs  and  rules  which  accumulate  with  the  spread  of  in- 
dustrial, municipal  and  national  life.  The  mayors,  alder- 
men, and  marshals  of  our  towns  and  cities ;  the  tithiugmen, 
constables,  etc.,  of  our  townships,  counties,  hundreds,  par- 
ishes, cities,  in  the  names  thus  given,  symbolize  the  same 
process  of  growth.4 

A  constitution  of  such  a  national  organon,  comprehending 

1  Cf.  Wharton,  American  Law,  g374 ;  Burgess,  Political  Science  and 
Constitutional  Law,  Part  I.,  Book  I.;  Bluntschli,  Theory  of  the  State, 
Book  II.,  Chap.  II.;  Freeman,  Comp.  Politics,  81,  82;  Woolsey,  Po- 
litical Science,  §57;  Waitz,  D.  V.  G.,  Vol.  I.,  p.  140,  note  2;  Amos, 
Science  of  Politics,  345,  358  and  passim;  same,  Science  of  Law,  329; 
Supreme  Court  of  the  United  States  in  the  following  cases :  Cherokee 
Nation  v.  Georgia,  5  Peters,  15  seq.;  Penhallow  v.  Doane's  Admrs.,  3 
Dallas,  80,  81,  Paterson,  J.;  Ibid.,  90,  91,  92,  Iredell,  J.;  Ware  v.  Hylton, 
3  Dall.  199;  Hare,  American  Const.  Law,  Vol.  I.,  12,  13,  35;  Legal- 
Tender  Case,  110  U.  S.,  421,  435.     See  Note  1,  Chap.  V.,post. 

2  Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  §491.  See  Wool- 
sey, Political  Science,  Vol.  II.,  §183.  Similar  events  will  be  found  in 
early  German  history,  Maurer,  Hofverfassung,  etc. 

3  Spencer,  supra,  §500  ;  Woolsey,  supra,  pp.  360  seq. 

4  Howard,  Local  Constitutional  History,  etc.;  Johns  Hopkins  University 
Studies,  Vol.  I.,  Article  IV.,  VIII.;  Maurer,  Stadtverfassung,  passim; 
Zoepfl,  D.  It.  G.,  Vol.  II.,  §§29,  38;  Heusler,  Stadtverf.,  p.  191  ;  Waitz, 
D.  V.  G.,  Vol.  II.,  300;  Grimm,  Deutsche  Rechtsalterthiimer,  315, 
"Meier." 


180     An  Introduction  to  the  Study  of  the  Constittdion. 

the  more  lasting  phenomena  which  conspire  to  maintain 
order  and  government,  is  par  excellence  a  thing  of  growth.  It 
represents  the  more  comprehensive  usages  and  customs  of 
the  larger  aggregate,  as  that  aggregate  finally  culminated  in 
a  larger  political  territorial  unit,  and  it  is  unthinkable  without 
the  prior  and  continuous  contemporaneous  growth  of  the 
parts  of  that  unit.  And  this  must  be  true  whether  the  con- 
stitution is  one  which  is  written  or  is  one  lying  in  usage,  as 
well  one  over  a  confederation  of  municipalities  as  one  over  a 
federation  of  states,  or  one  over  a  people  previously  organ- 
ized into  states  and  still  preserving  their  state  organization. 
The  reformers  of  France  in  vain  endeavored  to  stay  a  mighty 
and  awful  upturning  by  written  constitutions  which  they  de- 
vised, as  did  Locke  and  Shaftesbury  in  vain  endeavor  to  make 
a  constitution  for  a  much  smaller  community  in  the  Caro- 
linas — all  to  no  purpose,  because  these  paper  constitutions 
did  not  correspond  with  the  prior  or  contemporaneous  ele- 
ments of  the  social  organism. 

In  the  United  States  at  the  present  day  is  exhibited  one  of 
the  most  extraordinary  of  political  phenomena.  A  Federal 
Constitution,  a  charter  not  so  much  of  individual  rights  as 
of  governmental  privileges,  is  conferred  upon  an  agency 
which,  though  continually  shifting  in  character  and  in  its 
personnel,  is  still  a  continuous  and  powerful  organization. 
It  did  not  grow  as  human  beings  grow,  by  unfolding  the 
phvsical  germs  which  were  implicit  and  potential  in  the 
body ;  but  it  evolved  from  the  expansion  of  elements  upon 
which  it  depended  for  life  and  strength.  It  was  an  agency 
supposed,  intended  by  those  who  fashioned  it,  to  be  depen- 
dent upon  the  instrument  which  created  it.  It  needed  that 
to  give  it  a  form  and  character.  But  when  it  took  lease  of 
life  thus  invigorated,  it  instantaneously  assumed  a  scope  and 
purpose  which  the  elements  that  made  up  the  bone  and 
sinew — the  life  current — of  its  existence  fashioned  in  the 
mold  which  their  development  assumed  and  gave. 


CHAPTER  V. 

EVIDENCES  OF  PHYSICAL  AND  SOCIAL  GROWTH  IN  THE 
CONSTITUTION  OF  THE  UNITED  STATES. 

The  discussion  thus  far,  especially  that  contained  'in  the 
last  preceding  chapter,  if  it  indicates  anything,  reveals  the 
fact  that  the  Constitution  of  the  United  States,  like  other 
constitutions,  is  a  product  of  growth  and  represents  the 
latest  point  which  governmental  political  principles  have 
attained.  It  represents  the  institutional  life  of  the  nation1 
so  far  as  relates  to  governmental  regimen.  That  institutional 
life  did  not  entirely  break  all  connection  with  European 
institutional  life  with  the  Declaration  of  Independence.  The 
rules  relating  to  property,  contract,  procedure  and  personal 
security  still  remained,  and  so  did  domestic  as  well  as  com- 
mercial and  agricultural  habits  and  customs  of  the  people 
in  other  directions,  which  were  as  deeply  ingrained.  The 
integrity  of  State  formations,2  with  all  that  this  implied,  as 

1  The  question,  frequently  a  bone  of  contention  in  the  United  States,  as 
to  whether  the  United  States,  under  the  Constitution  of  the  United  States, 
constitute  a  nation,  seems  to  me  hardly  to  justify  it.  The  nation  is  made 
up  of  the  people  in  it  and  their  political  agents,  presented  with  a  regimen 
which  controls  domestic  and  foreign  affairs,  according  to  well-ordered 
forms  which  the  experience  of  the  community  has  rendered  possible. 
Respecting  internal  affairs,  the  administrative  functions  are  divided 
between  the  Federal  Government,  State  governments,  counties,  town- 
ships, school  districts,  cities,  etc.  Respecting  external  affairs,  in  its 
relation  with  other  nations,  the  interests  of  this  nation  are  in  the  control 
of  the  Federal  Government.  Wharton,  American  Law,  §374 ;  Chinese 
Exclusion  Case,  130  U.  S.  604,  605.  And  this  statement  holds  good,  even 
though  the  Federal  Supreme  Court  in  the  Legal  Tender  Case  (110  U.  S. 
449),  spoke  of  "  Congress,  as  the  legislature  of  a  sovereign  nation.'"  Com- 
pare Texas  v.  White,  7  Wall.  700 ;  Loan  Ass'n  v.  Topeka,  20  Wall.  655, 
663;  and,  especially,  J.  H.  U.  Series,  Vol.  VIII.,  pp.  7-77. 

2  Constitution  of  the  United  States,  Art.  IV.,  Sec.  IV.  In  the  light  of 
this  plain  recognition,  there  is  no  basis  for  the  position  maintained  by 
Dr.  Von  Hoist  and  by  Mr.  Weeden,  to  the  effect  that  the  States  had  no 
existence  anterior  to  the  formation  of  the  Constitution ;  that  they  were 


182     An  Introduction  to  the  Study  of  the  Constitution. 

illustrated  in  preceding  chapters  of  this  work,  and  the  Eng- 
lish common  law,1  became  incorporated  into  the  Constitution 
of  the  Federal  Government,  and  thus  crystallized  into  organic 
formuke  at  the  base  of  its  organization,  and  formed,  in  con- 
nection with  other  provisions  of  that  instrument,  a  basis  of 
support  in  construing  its  provisions,  save  in  those  particulars 
in  which  the  peculiar  history  of  this  country  rendered  those 
rules  inapplicable.2 

It  is  not  the  purpose  of  this  book  to  enter  upon  a  discus- 
sion of  the  history  of  this  organic  grant  of  powers.  That 
has  been  well  done  already.3  That  history  is  undoubtedly 
familiar  to  all  of  those  whose  interest  in  this  work  will 
induce  the  reading  of  it ;  a  history  which  reveals  the  play  of 
circumstances.1     Possessing  by  inheritance  the  undercurrent 


only  colonial  members  of  a  confederation,  or  what  you  will.  Von  Hoist, 
Const,  and  Pol.  Hist.,  Vol.  I.,  Chap.  I.;  Weeden,  Social  and  Econ.  Hist. 
N.  E.,  Vol.  II.,  pp.  840,  866.  Cf.  J.  II.  U.  Series,  Vol.  VIII.,  Art.  I.; 
Vol.  IX.,  pp.  83,  129,  and  post,  pp.  193-195. 

1  Cf.  Art.  III.,  Sec.  II.  :  "  The  judicial  power  shall  extend  to  all  casts 
in  law  and  equity,"  etc.  That  is,  English  jurisprudence  as  illustrated  in 
the  administration  of  its  tribunals.  See  Amendments  I.  to  VII.,  inclu- 
sive. Amendment  VII.  says  :  "  In  suits  at  common  law,  where  the  value 
in  controversy  shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,"  etc.;  Miller,  Constitution,  pp.  486,  489,  502. 

2 Compare  Wharton,  American  Law,  §§30,  114,  524  ;  Dicey,  Law  of  the 
Constitution,  Part  II.,  The  Rule  of  Law. 

3  See  list  of  authorities  cited  in  Fiske,  Civil  Government,  275  seq.  Cf. 
Bancroft,  Formation  of  the  Constitution  ;  Von  Hoist,  Constitutional  ami 
Political  History  of  the  United  States;  Fiske,  Critical  Period  of  American 
History;  Nar.  and  Crit.  Hist,  of  the  U.  S.,  Vol.  VII.,  Chaps.  III.  and 
IV.;  Story  on  the  Constitution  of  the  United  States. 

4  The  motto  of  the  Johns  Hopkins  historical  department  upon  its 
numerous  publications  is  taken  from  Dr.  E.  A.  Freeman,  the  historian  : 
"  History  is  past  politics  and  politics  present  history."  In  The  Forum  for 
April,  1892,  in  an  article  entitled  "  Review  of  my  Opinions"  (p.  157),  Dr. 
Freeman,  in  conclusion,  says:  "  It  is  that  chance  proverb  of  mine  which 
the  historical  students  of  Johns  Hopkins  have  honored  me  by  setting  up 
over  their  library,  it  is  by  the  application  which  I  have  made  of  it  both  to 
the  events  of  the  remotest  times  and  to  the  events  which  I  have  seen 
happen  in  the  course  of  sixty-nine  years,  that  I  would  fain  have  my  life 
and  my  writings  judged.''' 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      183 

of  independent  feeling  which  actuated  the  English  yeoman 
and  baron  in  securing  the  establishment  of  a  limited  mon- 
archy with  a  parliament  and  the  maintenance  of  local  control 
in  many  matters  of  internal  concern,  Englishmen  came  to 
this  shore  and  colonized  this  country.1  They  were  followed 
by  Dutch  and  Swedish  colonists,  who  possessed  or  soon  took 
up  substantially  similar  local  institutions  and  feeling.  Out 
of  the  expansion  of  this  feeling,  and  these  local  institutions, 
in  ever-increasing  areas  of  political  organization,  a  feeling 
unlike  the  autocratic  and  aristocratic  principles  of  Europe 
found  expression  in  continental  life.  I  use  the  term  conti- 
nental, because  a  continental  feeling — not  merely  the  spirit 
of  the  town-meeting  or  a  commonwealth — was  required  to 
create  a  later  national  feeling.2  When  Washington  took 
command  of  the  Revolutionary  volunteers  at  Cambridge  he 
found  them  a  mass  of  rough-and-ready  and  independent 
people,  who  had  little  respect  and  less  servility  for  title  and 
kingship;3  they  were  elements  from  which  came  that  Ameri- 
can feeling  which  we  see  thus  in  the  course  of  formation  into 
national  proportions.  Aristocracy  and  kingship  could  no 
more  thrive  among  such  a  bucolic  and  autonomous  people, 
as  they  had  obtained  a  lodging-place  in  Europe,  than  could 
vegetation  in  the  everlasting  sands  of  the  Sahara  desert ;  no 
more  could  they  thrive  among  these  than  among  the  pioneers 
of  our  Western  plains.  Washington  himself  typified  the 
finer  phases  of  that  American  growth.4     It  was  a  growth 

1  See  James  K.  Hosmer,  Anglo-Saxon  Freedom,  Chap.  VIII.  The  lit- 
erature upon  this  subject  may  be  ascertained  by  Vol.  III.  of  Narrative 
and  Critical  History  of  the  United  States. 

2  That  nations  have  a  policy  and  morality  of  their  own,  see  Taylor, 
Morality  of  Nations  ;  Leslie  Stephen,  Science  of  Ethics,  Chap.  III.,  Sees. 
XVIII.  to  XXIII.  inclusive.  Cf.  Weeden,  Social  and  Econ.  Hist,  of  N. 
E.,  Vol.  II.,  last  chapters  of  the  work. 

3  Cf.  Henry  Cabot  Lodge,  George  Washington,  Vol.  I.,  134  to  138. 

4  Lodge,  Life  of  Washington.  Cf.  The  Beginnings  of  American  Nation- 
ality, Johns  Hopkins  Historical  Series,  Vol.  8,  Arts.  I.  and  II.;  Fiske, 
Critical  Period  of  American  History,  187;  Weeden,  Social  and  Econ. 
Hist.  N.  E..  Vol.  II.,  last  two  chapters;  Ware  v.  Hylton,  3  Dallas,  222 
seq.;  Higginson  v.  Mein,  4  Cranch,  419. 


184     An  Introduction  to  the  Study  of  the  Constitution. 

bottomed,  as  national  growth  usually  is,  save  where  it  is 
interfered  with  by  factitious  institutions,  upon  the  experience 
of  the  people  (the  colonists)  and  their  descendants. 

The  peculiarity  of  this  evolution  was  that  it  finally  culmi- 
nated in  a  violent  rupture  with  the  older  forms  of  govern- 
ment in  Europe.1 

Perhaps  it  is  idle  to  discuss  the  question  as  to  whether  the 
American  colonists  would  ever  have  fought  for  independence 
and  severed  their  connection  with  the  English  Government 
under  different  circumstances  than  existed.2  It  cannot  be 
entirely  profitless  to  discuss  this.  If  we  may  obtain  a  lesson 
from  the  French  Revolution,  which  was  brewing  when  ours 
was,  and  which  came  to  a  climax  not  long  after  ours,  it 
becomes  at  once  apparent  that  mere  revolution  and  the  mere 
setting  up  of  written  constitutions  are  of  no  avail,  in  the 
attempted  establishment  of  forms  of  government  such  as 
ours,  in  uncongenial  environments.  The  written  constitution 
achieves  nothing  unless  sustained  by  the  continental  or  the 
national  spirit.  Thus  we  see  how  the  rupture,  ever  widening 
between  the  colonies  and  the  mother  country  as  the  conti- 
nental spirit  grew  into  national  spirit,  was  eventually  destined 
to  become  a  national  rupture,  deep-grained  enough  to  start 
and  maintain  a  constitution.     The  mercantile  policy  of  Great 

1  This  movement  repeated  upon  a  larger  and  successful  scale  what  was 
earlier  attempted  in  the  movement  in  England  which  ended  in  the  Crom- 
wellian  rule;  Hosmer,  Anglo-Saxon  Freedom,  Chaps.  IX.  and  X.  When 
Napoleon  Bonaparte  parted  with  Louisiana  to  the  United  States  he  gave 
this  remarkable  testimony  to  his  subjects  in  Louisiana,  in  his  public 
declaration  to  them,  of  the  value  of  this  government:  "  May  the  Louisi- 
anians  know  that  we  separate  ourselves  from  them  with  regret,  and  that 
we  stipulate  in  their  favor  all  that  they  can  desire  ;  and  may  they  recollect 
that  they  have  been  Frenchmen,  and  that  France,  in  giving  them  up,  has 
secured  for  them  advantages  which  they  never  would  have  obtained  under 
the  government,  however  kind,  of  an  European  mother  country."  Fay 
Hempstead,  Pictorial  History  of  Arkansas,  119.  This  circumstance,  if 
true,  is  not  mentioned  by  Mr.  Henry  Adams,  in  his  quite  exhaustive  dis- 
cussion of  the  Louisiana  Purchase,  Vols.  I.  and  II. ,  Hist,  of  U.  S.  during 
the  first  administration  of  Thomas  Jefferson. 

2  Cf.  Hosmer,  Anglo  Saxon  Freedom,  220,  221. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      185 

Britain,  which  far  outran  in  liberality  the  conservative  policy 
of  its  aristocracy,  was  in  essential  antagonism  to  any  process 
of  national  expansion  in  the  United  States  of  America.1  The 
result  of  the  growth  of  the  colonies  was  that  they  wanted  no 
king.  They  were  willing  to  accept  the  good  heritage,  but  the 
useless  they  had  outgrown.  They  had  no  taste,  as  Conti- 
nentals, who  had  roughed  life  through  all  the  stages  of  inde- 
pendent political  regimen,  for  king,  nobility  or  feudality ;  and 
when  national  regimen  became  necessary  they  wanted  to 
retain  the  guarantees  of  independence  as  far  as  practicable. 
It  required  all  of  that  dismal  experience  which  followed  in 
the  wake  of  independence,  under  the  Continental  Congress 
and  Articles  of  Confederation,  and  the  enormous  influence  of 
Washington,  Franklin  and  others,  to  prevent  them  from 
retaining  these  guarantees  in  excess,  to  obtain  the  excellent 
result  which  was  involved  in  the  Constitution  of  the  United 
States. 

This  leads  me  to  refer  to  a  point  which  needs  treatment. 
It  will  probably  be  assumed  that  in  my  discussion  of  the 
underlying  elements  of  our  constitutional  life  I  accord  no 
place  to  individual  initiative.  Such  is  far  from  being  my 
purpose.  The  mind  of  man  coined  the  Constitution  as  it  is 
written.  It  required  this  coinage  before  it  could  obtain  cur- 
rency. A  series  of  beliefs  or  maxims  which  lie  unexpressed 
in  the  consciousness  of  a  people,  and  not  yet  realized  in  an 
enduring  shape  or  established  institutions,  has  a  proble- 
matical value.  Such  beliefs  or  maxims  attain  the  dignity 
and  value  of  current  coin  by  being  put  into  a  written 
form.  The  few  maxims  of  government  contained  in  the 
Constitution  of  the  United  States  were  well  known  to  the 
States,  and  they  had  currency  there.  But  the  wider  conti- 
nental spirit  had  not  attained  the  point  assured  by  the 
adoption  of  the  Constitution.  The  growth  of  that  conti- 
nental spirit  along  the  lines  of  slow  national  development, 
in  the  direction  of  an  established  and  stable  government  of 

'See  Hosmer,  Anglo-Saxon  Freedom,  Cheap.  XIII. 


186     An  Introduction  to  the  Study  of  the  Constitution. 

co-ordinate  departments  and  national  powers,  would  have 
been  required  before  the  same  result  could  have  been  attained 
without  the  aid  of  a  constitution.  It  is  needless  to  say  that 
the  time  required  for  such  a  growth  would  have  been  indefi- 
nite and  prolonged.  Here  the  coinage  of  ripe  and  superior 
intellects  came  in,  to  breathe  forth  the  unuttered  and  un- 
formulated aspirations  of  the  mass  in  an  enduring  form. 
And  therefore  this  constitution  is  fully  deserving  of  the 
eulogium  passed  upon  it  by  the  foremost  minds  of  Europe.1 

The  course  of  growth  which  the  American  people,  in  their 
national  form,  discloses  is  marked  by  stages  of  development 
found  in  earlier  peoples ;  not  unlike  the  manner  in  which 
modern  civilized  individuals  disclose  in  modified  yet  multi- 
form ways  the  stages  of  earlier,  less  civilized  existence. 
This  has  already  been  indicated  in  the  last  preceding  chapter. 
The  claim  of  the  great  historian  Freeman,  that  the  New  Eng- 
land township  of  our  colonial  ancestors  typified  more  closely 
the  earlier  tunscipe  of  Britain  than  does  the  relic  of  it  left  in 
England  to-day,2  is  indicative  of  this  tendency  in  social 
bodies,  as  in  individuals,  to  reproduce,  as  they  develop, 
earlier  forms.  It  is  hardly  true  that  these  forms  will  at  the 
later  day  assume  exactly  the  same  outlines  as  they  had  in  the 
earlier  day,  but  there  will  be  fundamental  features  of  re- 
semblance.    Indeed,  where  social  organization,  on  virgin  soil, 

1  Gladstone,  Maine,  Bryce  and  others.  See  also  De  Tocqueville,  Democ- 
racy in  America.  Cf.  Bryce,  American  Commonwealth  ;  Sir  Henry  S. 
Maine,  Popular  Government,  Essay  IV.;  Hosmer,  Anglo-Saxon  Free- 
dom, Chap.  XV.;  Fiske,  Critical  Period  of  American  History,  Chapter 
V.,  223.  "As  the  British  Constitution  is  the  most  subtle  organism  which 
has  proceeded  from  progressive  history,  so  the  American  Constitution  is 
the  most  wonderful  work  ever  struck  off  at  a  given  time  by  the  brain  and 
purpose  of  man."  Fiske,  supra,  quoting  Gladstone.  See  Gladstone's 
words  again  quoted  in  Miller,  Constitution,  p.  32  of  the  text  and  p.  66, 
note. 

2  American  Inst.  Hist.,  by  Edw.  A.  Freeman,  J.  H.  Hist.  Series, Vol.  I.,  15. 
See  Germanic  Origin  of  the  New  England  Towns,  by  Herbert  B.  Adams, 
id.,  Art.  II.  "If  you  wish  to  see  Old  England  you  must  go  to  New 
England";  Freeman.  See  also  Hosmer,  Anglo-Saxon  Freedom,  113; 
"Weeden,  Social  and  Econ.  Hist.  N.  E.,  passim. 


Physical  and  Social  Growth  in  the  U.  8.  Constitution.      187 

reforms,  and  in  a  measure  starts  ngain  the  course  of  political 
government,  some  reversion  to  the  earlier  forms  is  sponta- 
neous and  inevitable.1  When  Europe  became  Romeless,  it 
started  again  with  the  earlier  local  group  as  a  basis,  just  as 
the  colonists  started  with  the  earlier  local  group,2  though,  of 
course,  there  were  current  relics  of  the  more  developed  con- 
ditions where  their  influence  had  penetrated  deep  enough.3 
This  reversion  was,  therefore,  a  necessity  before  the  later 
forms  in  American  constitutional  life  were  attainable.4 

The  claim,  so  justly  made,  that  in  the  first  period  of  colonial 
life  on  this  continent  the  white  man  was  essentially  an 
Englishman,  could  only  be  modified  gradually.  His  ideas 
were  English  in  most  of  the  fundamental  matters  of  his 
political  life — his  town-life,  his  church-life,  his  life  in  the 
courts — and  his  legal  views  were  and  are  still  largely  colored 
by  English  ideas.  His  Americanism  rested  upon  an  English 
foundation,  just  as  Englishry,  ^  in  the  formative  period  of 
England's  constitutional  life,  rested  upon  Germanic,  or 
rather  Saxon,  foundations.  Yet  there  is  a  difference;  for 
while  American  constitution-makers  began  their  work  in  a 
late  day  of  English  national  integration,  English  constitu- 
tion-makers began  before  any  German  nation  had  yet  in- 
tegrated.5    These   constitution-makers   alike    took    up    and 

1  Cf.  Rudimentary  Society  among  Boys,  by  John  Johnson,  Jr.,  J.  H. 
Hist.  Series,  Vol.  II.,  501  ;  Hosmer,  Anglo-Saxon  Freedom,  115. 

2 Of.  Waitz,  Deutsche  Verf.-Geschichte,  Vol.  I.;  Stubbs,  Const.  Hist,  of 
Eng.,  Vol.  I,;  Gneist,  Eng.  Const.  Hist.;  Green,  Making  of  England; 
Gomme,  The  Village  Community,  Chap.  III.;  Seebohm,  The  English 
Village  Community;  Essays  in  Anglo-Saxon  Law.  But  see  Freeman, 
Chief  Periods  of  European  History,  Lect.  VI. 

3  It  is  well  known  that  when  civilized  b  irbarians  go  back  among  their 
own  people  they  revert  back  to  the  old  conditions  ;  and  this  is  said  even 
of  civilized  beings  as  such. 

4  Hosmer,  Anglo-Saxon  Freedom.  Chapters  VIII.,  XIII.;  Fiske,  Be- 
ginnings of  New  England,  and  Critical  Period  of  American  History  ;  Am. 
Inst.  Hist.,  by  Edw.  A.  Freeman,  Art.  I.,  Vol.  I.,  J.  H.  U.  Series. 

5 1  mean  by  constitut ion-makers  the  active  elements  among  the  people 
which  primarily  tended  toward  a  constitutional  political  organism.  Cf. 
Hosmer,  Anglo-Saxon  Freedom,  Chap.  XIII. 


188     An  Introduction  to  the  Study  of  the  Constitution. 

molded  an  all-pervading  early  form  of  political  integration, 
whose  existence  could  be  traced,  in  more  or  less  developed 
stages,  in  the  forms  of  the  primitive  Aryan — before  that 
spread  of  population  ensued  which  gave  us  the  ancient 
Greek,  the  Iranian,  the  Tuscan,  the  Roman,  or  any  other  of 
the  early  peoples  who  inhabited  at  one  time  or  another 
Europe  and  Asia.1  It  was  a  form  whose  counterpart  is  con- 
fidently affirmed  to  find  its  copies  among  the  barbarian  and 
savage  tribes  of  undeveloped  countries  in  our  day.2 

The  present  most  civilized  and  moral  man  is  the  best 
representative  of  centuries  of  progression  and  retrogression ; 
he  is,  so  to  say,  the  product  of  the  compromises  of  the  ages 
past.  So  are  our  best,  most  advanced  social  forms.  In 
keeping  with  this,  the  needs  of  human  kind  gave  currency  to 
developed  ruling  powers  and  the  spread  of  a  legal  spirit 
over  wide  national  and  international  domains ;  and  these 
needs  also  evolved,  out  of  indefinite  want  of  organization,  an 
increasing  complexity  in  administrative  governmental  func- 
tions, and  an  increasing  expansion  of  bureaucratic  features. 
The  United  States — meaning  thereby  the  people  in  their 
social  pursuits,  their  local  governmental  forms,  their  com- 
monwealths, and  their  composite  national  organism — as  well 
present  an  example  of  this  latest  result  of  social  and  political 
evolution  as  any  other  country. 

Outside  of  the  preamble,  the  Constitution  of  the  United 
States  establishes  a  framework  of  government,  consisting  of 
the  co-ordinate  departments,  each  invested  with  a  fair  share 

1  See  the  last  preceding  chapter  of  this  work.  Also  cf.  Gomrae,  The 
Village  Community,  Chap.  L;  Taylor,  The  Origin  of  the  Aryans,  186 ; 
Schrader,  Sprachvergleichung  unci  Urgeschichte,  568  seq.;  Post,  Bau- 
steine,  etc.;  same,  Ursprung  des  Rechts ;  same,  Die  Geschlechtsgenos- 
senschaft  der  Urzeit ;  Morgan,  Ancient  Society;  Maine,  Village  Com- 
munities; Hearn,  Aryan  Household;  Spencer,  Prin.  of  Soc.  (Political 
Institutions) ;  Leist.  Graeco-Ital.  It.  G. 

2  See  post,  and  Spencer,  preceding  note  ;  also  see  Lubbock,  Prehistoric 
Times;  Tylor,  Anthropology,  219,  420. 


Physical  and  Social  Growth  in  the  U.  8.  Constitution.      189 

of  administrative  powers,  divided  into  classes  peculiar  to  the 
purpose  and  object  of  each  department.  Treason,  the  privi- 
leges of  citizenship,  the  powers  and  forms  of  organization  of 
the  States,  and  the  effect  of  State  records  are  in  a  greater  or 
smaller  measure  defined  therein.  It  contains  provisions  re- 
lating to  the  public  debt,  oath  of  office,  religious  tests,  and 
the  supremacy  of  the  provisions  of  the  instrument.  A  ratifi- 
cation of  the  Constitution  is  provided  for.  In  a  series  of 
amendments  provision  is  made  against  the  abuse  of  govern- 
mental functions  and  for  the  protection  of  the  citizen.  The  last 
five  amendments  relate  to  matters  which  grew  up  under  the 
Constitution,  indicative  of  startling  defects  therein — defects 
productive  of  evils  which  were  thereby  intended  to  be  cor- 
rected. 

The  provisions  relating  to  the  framework  of  government 
are  occupied  first  with  the  constitution  and  powers  of  the 
legislative  department  of  the  government.  Waiving  the  ques- 
tion whether,  appropriately,  a  bill  of  rights  and  the  powers 
of  the  executive  department  in  separate  chapters  or  articles 
should  not  have  first  engaged  the  attention  of  the  framers  of 
the  Constitution  (in  favor  of  which  modern  experience  speaks 
in  no  uncertain  tones),  in  other  respects  that  instrument  is 
less  artificially  constructed  than  more  recent  State  constitu- 
tions.1 For  instance,  the  powers  of  Congress,  as  defined  in 
Article  I.,  Section  VIII.,  are  not  all  peculiar  to  Congress. 
They  need  the  President's  concurrence  to  make  them  effec- 
tual. Nor  is  the  term  Congress  a  happy  one.3  The  Congress 
of  the  States  prior  to  the  adoption  of  the  Constitution  gave 
currency  to  the  term.  It  had  little  appropriate  application 
to  the  legislative  body  created  by  the  article  referred  to. 
That  body  was  in  many  respects  a  copy  of  the  Parliament  of 
England,  except  that  its  powers  were  narrowed  to  the  pur- 
pose of  its  creation.     The  language  employed  to  grant  those 

1  Gf.  Constitution  of  Pennsylvania  or  of  Arkansas,  now  in  force  (1891), 
with  the  Federal  Constitution.  See  Ben  Perley  Poore,  Charters  and 
Constitutions. 

2  Piske,  Civil  Government,  203. 


190     An  Introduction  to  the  Study  of  the  Constitution. 

powers  is  full  of  pleonasms.  As  James  Madison  wrote  to 
Joseph  C.  Cabell,  under  date  of  September  18,  1828,  "The 
Constitution  vests  in  Congress  expressly  'the  power  to  lay 
and  collect  taxes,  duties  and  excises,'  and  'the  power  to 
regulate  trade.'  That  the  former  power,  if  not  particularly 
expressed,  would  have  been  included  in  the  latter,  as  one  of 
the  objects  of  a  general  power  to  regulate  trade,  is  not  neces- 
sarily impugned  by  its  being  so  expressed.  Examples  of  this 
sort  cannot  sometimes  be  easily  avoided,  and  are  to  be  seen 
elsewhere  in  the  Constitution.  Thus,  the  power  'to  define 
and  punish  offenses  against  the  law  of  nations  '  includes  the 
power  afterwards  particularly  expressed  '  to  make  rules  con- 
cerning captures,  etc.,  from  offending  neutrals.'  So,  also,  a 
power  'to  coin  money'  would  doubtless  include  that  of 
'regulating  its  value,'  had  not  the  latter  power  been  ex- 
pressly inserted.  The  term  taxes,  if  standing  alone,  would 
certainly  have  included  duties,  imposts  and  excises.  In 
another  clause  it  is  said  '  no  taxes  or  duties  shall  be  laid  on 
exports,'  etc.     Here  the  two  terms  are  used  as  synonymous."1 

"  To  regulate  the  value  of  coin  "2  would  clearly  imply  the 
power  given  in  the  next  clause3  "to  provide  for  the  punish- 
ment of  counterfeiting  the  securities  and  current  coin  of  the 
United  States."  Indeed,  many  of  the  powers  recited  in  detail 
are  covered  by  other  provisions,  and  if  they  had  not  been, 
would  clearly  have  been  embraced  in  the  omnibus  clause 
called  the  "  general  welfare,"  or  elastic  clause,4  which  recites 
that  Congress  shall  have  power  "  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers  and  all  other  powers  vested  by  this  Consti- 
tution in  the  Government  of  the  United  States,  or  in  any 
department  or  officer  thereof." 

That  the  use  of  superfluous  phraseology  did  not  enable  the 
framers  of  the  Constitution  to  cover  all  points  was  indicated 

1  Of.  A  Short  Tariff  History  of  the  United  States,  by  David  H.  Mason. 
8  Art.  I.,  Sec.  VIII.,  5.  albid.6. 

4  Ibid.  18.     See  Fiske,  Civil  Government,  245,  259. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      191 

in  the  first  administration  of  Washington— the  first  adminis- 
tration under  it — when  the  question  was  as  to  whether  Con- 
gress had  power  to  create  a  national  bank.1  No  phraseology 
therein  contained,  in  terms,  authorizes  Congress  to  create  a 
bank  any  more  than  it  does  the  creation  of  lotteries;  and, 
according  to  statutory  rules  of  construction,  the  recital  in 
detail  of  powers  conferred  excludes  other  instances.2  The 
powers  of  the  Federal  Government  have  been  forcibly 
expanded  upon  more  than  one  occasion  to  adapt  the  instru- 
ment to  the  needs  of  the  country.3  And  clauses  which  were 
intended  to  confer  the  power  of  protecting  American  indus- 
tries by  high  tariif  regulations  have  lost  their  original 
meaning.4  Here  are  defects  of  language  of  great  import- 
ance. 

1  Wharton,  American  Law,  §417  ;  McMaster,  Hist,  of  the  People  of  the 
U.  S.,  Vol.  II.,  28  seq.;  McCullough  v.  Maryland,  4  Wheatou,  316. 

2  This  rule  does  not  seem  to  be  applied  with  the  same  strictness  to  con- 
stitutional provisions  as  to  statutory  enactments.  Cf.  Juilliard  v.  Green- 
man,  110  U.  S.  421,438,439. 

3  Instance  the  purchase  of  Louisiana  and  Alaska,  the  issue  of  paper 
currency,  the  Emancipation  Proclamation,  the  assumption  of  jurisdiction 
of  the  Supreme  Court  of  the  United  States  over  the  decisions  of  State 
Courts  by  writs  of  error  under  the  provisions  of  the  Act  of  Congress. 

4  Instance  the  "  commerce  clause."  See  Mason,  A  Short  Tariff  History 
of  the  United  States.  The  Supreme  Court  of  the  United  States  bears  out 
this  construction  of  the  commerce  clause  in  many  opinions.  "  It  author- 
izes Congress  to  prescribe  the  conditions  upon  ivhich  commerce  in  all  its 

*>forms  shall  be  conducted  between  our  citizens  and  the  citizens  or  subjects 
of  other  countries";  Field,  J.,  Mobile  Co.  v.  Kimball,  102  U.  S.  696. 
"The  Act  of  Congress  of  August  3,  1882,  'to  regulate  immigration,' 
which  imposes  upon  the  owners  of  steam  or  sailing  vessels  who  shall  bring 
passengers  from  a  foreign  port  into  a  port  of  the  United  States,  a  duty  of 
fifty  cents  for  every  such  passenger  not  a  citizen  of  this  country,  is  a  valid 
exercise  of  the  power  to  regulate  commerce  with  foreign  nations  ";  Head 
Money  Cases,  112  U.  S.  580;  People  v.  Compagnie  Generate  Trans- 
atlantique,  107  U.  S.  59.  It  has  been  held,  in  a  number  of  cases,  that  the 
exaction  of  a  tax  or  license  fee  on  interstate  commerce  was  a  regulation 
of  commerce  committed  exclusively  to  Congress  under  the  commerce 
clause.  See  Welton  v.  Missouri,  91  U.  S.  275,  in  which  case  Mr.  Justice 
Field  said  :  "  The  power  to  regulate  conferred  by  that  clause  upon  Con- 
gress is  one  without  limitation ;  and  to  regulate  commerce  is  to  prescribe 


192     An  Introduction  to  the  Study  of  the  Constitution. 

Coupled  with  the  powers  of  Congress  are  powers  denied  to 
the  States.1  These  would  seem  to  have  been  more  appro- 
priately referred  to  after  the  powers  of  all  the  departments  of 
the  Federal  Government  had  been  recited.  The  propriety  of 
defining  treasou  in  an  organic  instrument,  especially  in  con- 
nection with  the  constitution  of  the  Supreme  Court  and  the 
jurisdiction  of  that  and  lesser  courts,2  may  well  be  questioned. 
If  it  was  a  needful  provision  it  should  have  been  incorporated 
in  a  bill  of  rights. 

The  failure  to  define  citizenship  in  the  United  States  was 
a  grievous  defect  in  the  Constitution.  This  has  now  been 
supplied  after  a  long  and  most  sanguinary  fratricidal  war, 
fought,  if  ever  wars  were  fought,  for  principle,  and  as 
doggedly  and  stubbornly  and  bravely  as  freemen  ever  fought 
on  Marston  Moor  or  around  Boston.  And  the  end  of  this 
late  emendation  has  not  come  yet ;  for  the  blind  zeal  of  the 
successful  side  carried  them  beyond  the  object  of  that  war, 
to  invest  with  the  franchise  and  right  to  hold  office  a  great 
mass  of  enfranchised  slaves,  thus  exposing  the  Anglo- 
Saxons  in  many  parts  of  the  South  to  the  greater  fecundity, 
immorality,  mendacity  and  simplicity  of  the  negro  race. 
Who  knows  but  that  thus  a  great  historical  mistake  has 
been  made;  a  crime  of  the  century  committed? 

These  matters  inform  us  that  the  Constitution  was,  indeed, 
the  artificial  work  of  men — men  who  were  fallible,  and  not 
without  the  disposition  here  and  there  to  say  too  much,  and# 

rules  by  which  it  shall  be  governed,  that  is,  the  conditions  upon  -which  it 
shall  be  conducted;  to  determine  how  far  it  shall  be  free  and  untrammeled, 
how  far  it  shall  be  burdened  by  duties  and  imposts,  a7id  how  far  it  shall 
be  prohibited."  Id.,  279,  280  ;  Robbins  v.  Shelby  Co.  Taxing  Dist.,  120 
U.  S.  489;  Bowman  v.  R.  R.  Co.,  125  U.  S.  465;  Leloup  v.  Port  of 
Mobile,  127  U.  S.  640,  648 ;  Phila.  Steamship  Co.  v.  Pennsylvania,  122 
U.  S.  326;  Asher  v.  Texas,  128  U.  S.  129;  Western  Union  Tel.  Co.  v. 
Alabama,  132  U.  S.  472.  The  acts  prohibiting  Chinese  immigration,  as 
well  as  objectionable  pauper  immigration,  derive  their  validity  from  the 
same  clause.  Chinese  Exclusion  Case,  130  U.  S.  581 ,  589  seq.  Cf.  Miller, 
Const,  of  the  U.  S.,  Lect.  IX. 

1  Art.  I.,  Sec.  X.  2 Art.  III.,  Sec.  III. 


Physical  and  Social  Growth  in  the  U.  8.  Constitution.      193 

elsewhere  to  say  too  little;  men,  some  of  whom  were  sur- 
charged with  pedantry  and  the  desire  to  air  it ;  and  others 
of  whom  were  of  diverse  and  antagonistic  opinions  deep-set 
and  hard  to  change ;  and  men,  a  very  few  of  whom  possessed 
that  profound  statesmanship  which,  built  up  from  actual 
contact  with  the  roughest  and  most  startling  experiences 
attending  the  budding  forth  of  the  new  federal  organism, 
saw  the  greater  evils  to  be  avoided — even  though  the  remedy 
might  come  in  an  imperfect  form,  even  though  the  phrase- 
ology of  the  organic  instrument  was  illogical,  redundant,  and 
in  some  respects  inadequate.  It  was  sufficient  for  these  that 
it  gave  to  the  federal  organism  independent  powers  derived 
from  the  people  and  not  from  the  several  States.1 

The  inadequate  data  which  have  come  down  to  us  indicate 
that  the  best  part  of  what  history  told  of  past  democracies, 
and  of  the  blessings  of  the  English  bi-cameral  system,  was 
known  to  the  men  who  framed  the  Constitution.2  That  bi- 
cameral system  had  found  adoption  among  a  number  of  the 
States,  and  was  not  a  new  thing.  One  writer,  qualified  to 
speak,  has  told  us  that  all  of  the  States,  except  Pennsylvania, 
Vermont,  and  for  a  while  Georgia,  had  the  bi-cameral  system ; 
that  the  name  "Senate"  was  used  for  the  upper  house  in 
Maryland,  Massachusetts,  New  York,  North  Carolina,  New 
Hampshire  and  South  Carolina ;  that  the  name  "  House  of 
Representatives"  for  the  lower  house  was  in  use  in  Massa- 
chusetts, New  Hampshire,  South  Carolina,  Pennsylvania 
and  Vermont.3  It  was  to  be  expected  that  the  home  words 
for  the  two  chambers  would  be  the  choice  for  designating  the 
two  chambers  composing  the  federal  legislative  body  rather 
than  the  English  designations.     "We  have  already  seen  how 

1  Of.  Fiske,  Critical  Period  of  American  History,  236  seg.;  Hosmer, 
Anglo-Saxon  Freedom,  234  ;  Wharton,  American  Law,  §§370,  371 ;  Hannis 
Taylor,  Origin  and  Growth  of  the  English  Constitution,  65. 

2Bryce,  American  Commonwealth,  Chap.  HI.;  Fiske,  Critical  Period, 
etc.,  290,  291. 

3 Mr.  Alexander  Johnston,  New  Princeton  Review,  September,  1887. 
Of.  Ben  Perley  Poore,  Charters  and  Constitutions. 


194     An  Introduction  to  the  Study  of  the  Constitution. 

the  use  of  the  word  "  Parliament "  was  eschewed.  And  as 
the  terms  were  borrowed  to  give  names  to  the  two  chambers, 
so  were  -the  composition  and  practice  of  the  two  bodies 
modeled  after  State  exemplars,  with  such  exceptions  as  were 
induced  by  the  wider  area  and  the  different  bases  of  repre- 
sentation applicable  to  the  Federal  Government  as  distin- 
guished from  the  bases  of  State  legislative  representation. 
In  determining  the  basis  of  representation  in  the  Federal 
House  of  Representatives,  the  slave  element  produced  grave 
complications. 

The  President  was  copied  from  the  Governors  of  the  States. 
The  name  itself  had  been  in  use  in  Delaware,  New  Hamp- 
shire, Pennsylvania  and  South  Carolina.  Every  State  pre- 
scribed a  form  of  oath  for  its  officers.  Pennsylvania  fur- 
nished the  form  of  oath  for  the  President.  New  York 
furnished  an  exact  prototype  of  the  office  of  Vice-President  in 
its  Lieutenant-Governorship.  The  provisions  for  the  recog- 
nition of  interstate  citizenship  and  for  the  rendition  of 
fugitive  slaves  and  criminals  were  suggested  by  the  eighth 
article  of  the  New  England  Confederation  of  1643  and  the 
fourth  article  of  the  Confederation.  The  first  eight  amend- 
ments are  in  substance  a  reiteration  of  the  English  Bill  of 
Rights.1  The  ninth,  tenth  and  eleventh  amendments  were 
felt  to  be  necessary  to  guard  against  too  extended  an  applica- 
tion of  Federal  powers  at  the  expense  of  the  States  and  the 
people. 

Mr.  Johnston  says  that  the  most  solid  work  done  by  the 
framers  of  the  Constitution  was  in  giving  powers  to  Congress 
and  the  establishment  of  a  Federal  judiciary.  And  yet  the 
same  phenomenon  is  presenting  itself  here  which  is  the  case 
in  Great  Britain — experience  is  slowly  but  surely  merging 
larger  power  in  the  lower  house  at  the  expense  of  the  upper 
house  and  the  Executive.2     And  the  judiciary  have  not  yet 


1  For  a  struggle  for  similar  principles  in  the  reign  of  Charles  I.,  see 
Hosmer,  Anglo-Saxon  Freedom,  Chapters  IX.  and  X. 

2  Cf.  Woodrow  Wilson,  Congressional  Government ;  Bryce,   American 
Commonwealth,  Chapters  XIII.  to  XXL,  inclusive. 


Physical  and  Social  Growth  in  the  U.  8.  Constitution.      195 

obtained  the  full  jurisdiction  contemplated  by  the  Constitu- 
tion, showing  that  the  popular  confidence  is  not  and  never 
has  been  given  to  it  in  the  measure  contemplated  by  the 
framers  of  the  Constitution.1 

The  Constitution  was  in  form  neither  an  entirely  original 
nor  a  perfect  creation — no  more  so  than  a  contract  upon 
such  a  large  subject  would  be;  both,  following  in  the  line  of 
more  or  less  previous  experience,  would  exhibit  the  use  of 
superabundant  phraseology  in  proportion  to  the  abundance 
of  caution  possessed.  Yet,  in  the  discussions  shown  in 
Elliott's  Debates,  in  the  writings  of  Mr.  Madison  and  Mr. 
Bancroft's  second  volume  on  the  Formation  of  the  Constitu- 
tion, it  does  not  appear  to  have  been  always  felt  that  the 
provisions  suggested  were  already  in  use  among  the  States. 
The  primary  thought  seems  to  have  been  to  secure  a  more 
perfect  and  stronger  Federal  power  which  should  not  be 
dependent  upon  the  States,  should  therefore  have  sufficient 
taxing  power  of  its  own,  and  should  have  the  power  of  pro- 
tecting the  commerce  and  fostering  the  industries  of  the 
United  States.  Such  was,  primarily,  the  motive,  produced 
by  the  threatened  dissolution  of  the  Confederation,  which 
led  to  the  Commercial  Convention  at  Annapolis,  and,  even- 
tually, the  Constitutional  Convention  at  Philadelphia.  It 
needs  to  be  remembered  that  the  Constitutional  Convention 
usurped  powers  not  accorded  to  it  in  its  organization,  and 
that  the  idea  of  a  Constitution  forced  itself  into  prominence 
as  the  deliberations  proceeded ;  a  technical  breach  of  the 
trust  confided  to  the  members  of  this  convention,  which  was 
concurred  in  by  Washington  and  Franklin.  But  the  factors 
of  national  organization  thus  impelled  them.  And  the  de- 
bates of  the  convention,  if  fully  reported  to  us,  would  still 
leave   unreported   that   undercurrent    of  experience   whose 

1  And  the  judicial  power,  and  mode  of  exercise  of  that  power,  are 
simply  a  wider  application  of  English  methods.  Cf.  Willoughby,  Con- 
stitution of  the  United  States;  Dicey,  Law  of  the  Constitution,  Part 
I.,  Chap.  III.,  154,  155;  Bryce,  Am.  Com.,  Vol.  I.,  Chap.  XXIII.,  252, 
253  ;  Maine,  Popular  Government,  Essay  IV.,  218  seg. 


196     An  Introduction  to  the  Study  of  the  Constitution. 

familiarity  with  charter  and  constitutional  framework  and 
principles  constituted  the  most  substantial  element  in  securing 
the  successful  framing  of  the  organic  act.1 

To  me  it  seems,  gathering  up  some  views  from  this  detail 
of  the  texture  and  formation  of  the  Constitution,  that  the 
work  of  framing  it  was  the  product  of  circumstances.  These 
circumstances  were  the  inadequacies  of  State  control  over 
continental  affairs — the  need  of  some  continental  organic  po- 
litical agency  independent  of  the  States,  so  that  continental 
harmony  and  unity  would  have  a  chance  to  blossom  to 
fruition  and  become  permanent.  Independent  power  and 
resources  given  to  some  continental  organic  political  unit 
necessitated  the  construction  of  a  framework  of  government, 
while  previous  experience  and  conservative  habits  necessitated 
the  formation  of  that  framework  largely  on  lines  of  thought 
which  had  become  fixed  in  the  life  of  the  people.  A  bi- 
cameral system,  with  an  executive  head  and  cabinet,  and 
three  co-ordinate  departments  of  government,  had  been  ex- 
perienced to  be  up  to  that  time  the  safest,  or  at  any  rate  the 
best  known  and  most  desirable  incidents  of  government. 
These  things  having  been  established,  the  rest  of  the  work 
was  to  reduce  these  necessities  to  form,  to  fill  in  the  needful 
details  and  set  the  government  going.  Incidentally,  as  the 
States  had  brought  great  trouble  on  themselves  by  the  un- 
limited issue  of  irredeemable  paper,  these  were  prohibited 
from  doing  the  same  again ;  and  the  power  to  coin  money 
was  put  in  the  hands  of  Congress,  so  that  a  uniform  coinage 
and  standard  of  value  should  be  introduced.  The  States 
were  also  prohibited  from  continuing  the  ruinous  policy  of 
impairing  the  obligation  of  contracts,  an  outcome  of  the 
vicissitudes  and  emergencies  which  induced  the  issue  of  irre- 
deemable paper.  Congress  was  invested  with  power  to 
regulate  foreign  and  interstate  commerce,  and,  as  a  part  of 
the  exercise  of  this  power,  to  protect  and  foster  American 
industries. 

1  Cf.  Miller,  Const,  of  the  U.  S.,  Lect.  IX.,  pp.  433-446. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      197 

It  does  not  admit  of  question  but  that  the  framers  of  the 
Constitution  had  an  eye  to  the  future  when  they  adopted  it. 
All  that  has  been  said  of  the  objects  of  its  formation  indicates 
that.  But  the  prescience  was  vague  and  indeterminate,  and 
has  not  come  down  to  us  in  a  way  which  justifies  us  in 
according  to  men  any  profound  insight  into  the  future  of 
the  country  as  that  future  came  about.  George  Washington, 
the  presiding  officer  of  that  body,  and,  upon  the  whole,  the 
best  judge  of  the  actual  trend  of  events  in  the  country  in  his 
day,  never  gave  currency  to  any  thoughts  which  went  beyond 
the  future  peopling  of  the  territory  lying  between  the  Atlantic 
seaboard  and  the  Mississippi.  Before  the  Constitution  had 
started  on  its  journey  through  the  States,  when  the  question 
was  as  to  its  adoption,  the  first  ten  amendments,  which  did  not 
occur  to  the  framers  of  it,  were  urged  and  insisted  upon  by 
the  people.  And  from  time  to  time  since,  notwithstanding 
the  liberal  stretching  to  which  construction  has  subjected  the 
language  of  the  organic  act,  the  need  of  further  amendments 
has  been  felt,  and  they  have  been  adopted. 

A  German  writer  has  said  that  the  people  of  this  country 
have  canonized  the  Constitution  of  the  United  States ;  that 
we  have  accorded  to  it  a  sacredness  which  interferes  with  the 
appropriate  and  harmonious  expansion  of  the  government ; 
and  that  thus  has  been  occasioned  a  series  of  secondary  rules 
and  canons  which  as  much  make  up  its  body  of  law  as  the 
organic  provisions  themselves — rules  and  canons  which 
depend  upon  that  broad  field  of  implied  powers  whose  limit 
is  undefinable.1  How,  with  the  confessed  faults  it  exhibited, 
due  to  the  inevitable  fallibility  of  its  framers  and  the  poverty 
of  language,  it  could  fail  to  require  in  time  the  harmonizing 
influence  of  construction,  it  would  be  difficult  to  conceive. 
And  how  an  organic  law  could  have  endured,  and  become 
respected  and  adhered  to,  without  making  it  the  conserva- 

1  Von  Hoist,  Constitutional  History  of  the  United  States,  Vol.  I.,  Chap. 
II.  See  also  Hannis  Taylor,  Origin  and  Growth  of  the  English  Constitu- 
tion, 60. 


198     An  Introduction  to  the  Study  of  the  Constitution. 

tive  basis  for  construction  to  play  upon  and  about,  it  is  also 
difficult  to  understand.  The  so-called  canonization  of  the 
Constitution  consists  in  giving  emphasis  to  its  provisions, 
and  in  adhering  with  a  reasonable  degree  of  firmness  to  its 
provisions.  Any  other  course  would  have  wiped  it  out  and 
utterly  destroyed  its  influence  for  usefulness ;  for  in  the  con- 
tempt and  disregard  we  feel  for  language  in  any  document  is 
involved  its  ultimate  powerlessness  and  uselessness.  If  any- 
thing beyond  growth  and  change  of  fundamental  ideas  and 
aspirations  has  alienated  the  affection  of  the  people  from 
the  sacred  text  of  Holy  Scriptures,  it  has  been  the  destructive 
criticism  to  which  that  work  has  been  subjected.  The  Con- 
stitution, under  the  disintegrating  agency  of  a  similar  process, 
would  undergo  a  similar  process  of  dissolution.  That  so- 
called  canonization,  rather  that  conservative  process  of 
constitutional  preservation,  stands  always  in  marked  con- 
trast to  the  theoretical  constitutions  of  so-called  philosophic 
framers  of  new  governments,  whose  systems,  like  that  of 
Si  eyes,  when  put  to  the  test  of  popular  construction,  tumble 
to  pieces.  Von  Hoist  himself  shows  that  the  term  canoniza- 
tion is  improper,  for,  as  he  proceeds  in  his  voluminous,  in- 
teresting and  instructive  history,  he  shows  how  the  provisions 
of  the  Constitution  and  its  true  intent  were  nullified  and 
narrowed  down  by  the  slave  power,  which  sought  to  narrow 
the  sphere  of  action  of  the  Constitution  in  favor  of  State 
power  and  jurisdiction.1  We  have  seen  how  the  Presidents, 
Congress  and  the  Supreme  Court  have  expanded  its  pro- 
visions from  time  to  time,  and  how  the  people  by  amendment 
have  filled  up  defects  therein.  The  Constitution  in  its 
earlier  stage  was  far  from  being  canonized;  it  was  then 
looked  upon  with  suspicion  and  distrust  by  many,  including 
some  of  the  most  prominent  statesmen  of  the  day.  And 
that  distrust  eventually  gave  rise  to  an  anti-Federalist  party, 
headed  by  Thomas  Jefferson,  which  for  nearly  half  a  century 

1  Von  Hoist's  principal  refrain  is  with  reference  to  the  slave  power  and 
its  consequences. 


Physical  and  Social  Growth  in  the  U.  8.  Constitution.      199 

kept  control  of  the  government,  and  which  bids  fair  to  do  the 
like  again.  The  affection  of  the  people  then,  it  was  fully  agreed 
upon  all  sides,  was  rather  with  the  local  State  jurisdictions 
than  the  more  distant  Federal  Government.  Not  only  was 
the  formation  of  an  anti-Federalist  party,  even  against  Wash- 
ington, a  strong  indication  of  the  absence  of  the  canonizing 
agency  in  the  respect  and  veneration  due  the  Constitution, 
but  whenever  special  State  interests  were  involved,  the  dis- 
position to  resort  to  nullification  resolutions  was  another 
indication  of  the  same  sort.  To  the  Supreme  Court  of  the 
United  States,  whose  mode  of  judging  and  determining  con- 
stitutional and  other  questions,  has  been  by  adhering  to 
precedent  and  established  canons  of  construction,  and  to  the 
custom  of  the  American  bar  and  people  to  adhere  to  a 
similar  ordered  legal  development,  may  be  attributed  the 
maintenance  and  respect  entertained  for  that  organic  law.1 

I  have  thus,  in  meager  outline,  endeavored  to  account  for 
the  existence  of  the  Constitution  in  this  country,  and  the 
moving  agencies  in  producing  and  maintaining  it.  We  can  see 
in  its  adoption  and  continuance  the  effect  of  ordered  self- 
government,  due  to  township,  county,  city  and  commonwealth 
administration,  and  to  the  influence  of  minds  made  patriotic 
by  the  pursuit  of  national  ends.  Under  all  outward  mani- 
festations, whether  in  the  Constitutional  Convention,  in 
Congress,  the  Presidency,  the  Supreme  Court,  or  among  the 
people,  we  see  the  current  of  past  experience,  asserting  itself 
in  an  adherence  to  inherited  jurisprudence  and  to  inherited 
governmental  and  other  ideas,  changed  by  the  environment 
which  evolved  from  independent  colonists  an  independent 
complex  national  sovereignty.  Just  as  that  coinage  of  sen- 
tience and  thought — language — contains  the  remains  of  past 
physical  and  intellectual  action,  so  does  the  coinage  of  our 
Federal  Constitution  contain  remains  of  the  historical  pro- 

'The  term  "canonization,"  with  its  satirical  implications,  is  apt  to 
sway  the  adversely  inclined  against  the  Constitution,  in  favor  of  those 
socialistic  and  anarchistic  dogmas  which  render  such  theories  as  Henry 
George  and  Edward  Bellamy  acceptable. 


200     An  Introduction  to  the  Study  of  the  U.  S.  Constitution. 

gress  of  the  people ;  *  that  is,  not  a  mere  disorderly  and  un- 
organized mass  of  units,  but  a  people  with  a  highly  devel- 
oped number  of  local  and  State  governments,  a  people  with  a 
cultivated  political  consciousness :  a  political  consciousness 
which  also  implied  the  perception  by  men  of  their  relations 
to  one  another  in  family  and  local  political  communities,  of 
their  power  to  shape  their  own  political  destinies  within 
bounds.2  We  have  seen,  in  the  last  preceding  chapter,  the 
course  of  development  of  the  local  subdivisions  of  the  States 
of  the  Union  : 3  a  course  of  development,  by  the  way,  unlike 
the  general  course  of  development  in  ancient  or  earlier 
modern  times,  because  it  builded  upon  experience  which 
had  outgrown  the  mere  expansion  of  local  village-com- 
munity life — a  process  of  growth  which  characterized  the 
home  (xwfiTjY,  the  metrotome  (lur/Tloox(»tj.r/),  the  polis  (-o/.'c), 
the  metropolis  (jj^rfJo-oA^)-'  of  ancient  Greece  and  Some. 
The  awakening  and  formation  of  the  federal  spirit  in  this 
country  was  a  form  of  political  awakening,  a  throwing  off  of 
constitutional  indifference  characteristic  of  organic  beings, 
upon  national  proportions,  and  was  beyond  the  more  prema- 
ture, loose  and  earlier  federations  of  Greek  cities;  just  as  it 
was  the  spread  by  contact  and  expansion  of  colonial  centers 
in  America  which  led  to  statehood.  The  evolution  of  the 
commonwealth   of  Connecticut  from   the  previous   general 

^ostner,  People  and  Politics,  Book  II.,  Chap.  IV.;  Haunis  Taylor, 
Origin  and  Growth  of  the  English  Constitution,  Introduction. 

2Hosmer,  supra,  133. 

3 Of.  Weeden,  Social  and  Economic  Hist,  of  New  England,  Vol.  I.,  49 
seq.',  Hosmer,  Anglo-Saxon  Freedom,  pp.  112-123. 

4  Cf.  Kuhn,  Ueber  die  Entstehung  der  Staedte  der  Alten,  Einleitung  ; 
Schrader,  Sprachvergleichung  u.  Urgeschichte,  578 ;  Aristotle,  Politics, 
Book  I.,  Chap.  II.  Aristotle  defines  a  kome  to  be  "a  society  of  many 
families  which  was  instituted  for  lasting  and  mutual  advantage."  It  is 
a  village  in  English  form.  It  may  be  composed  of  emigrant  members  of 
one  family,  and  the  children  and  children's  children.     Cf.  Kuhn. 

6  Kuhn,  Stadtische  u.  Burgerliche  Verfassung  des  romischen  Rechts, 
Vol.  I.,  271;  Marquardt,  Rom.  Stadtverwaltung,  Vol.  I.,  Chap.  I. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      201 

government  of  town  settlements1  is  not  unlike  the  evolution 
of  the  ancient  Greek  oovoaio [toe,  (synoikismos)  f  and  in  some 
details  is  a  reproduction  of  a  still  earlier  and,  therefore, 
deeper  organic  political  form.3  But  the  analogies  are  only 
relative  to  the  organic  process  of  development ;  the  relative 
place  and  meaning  of  the  early  form,  in  a  political  sense, 
has  become  colored  in  its  latest  phase  by  the  incidents  of 
English  political  and  jural  conceptions  of  a  higher  and 
national  character.  The  colonists  upon  the  New  England 
shores  of  North  America  drifted,  by  the  nature  of  their 
necessities,  into  local  subdivisions,  more  and  more  controlled, 
as  in  Connecticut,  by  a  General  Court,  as  the  territory  be- 
came populated.  And  the  General  Court  became,  not  unlike 
the  early  parliaments,  or  witenagemotes,  split  up  into  segre- 
gated functional  groups,  coordinated  into  executive,  legisla- 
tive and  judicial  departments.  The  essential  difference 
between  the  Connecticut  colonists  and  the  early  English, 
and  the  still  earlier  Greek,  was  that  the  colonists  had  evolved, 
after  centuries  of  German  and  English  development,  a  po- 
litical capacity  which,  with  expansion,  and  without  too  much 
federal  influence,  would  be  capable  of  appreciating  and 
sustaining  a  national  territorial  unit  of  magnificent  propor- 
tions, based  on  popular  suffrage.4  And  the  Constitution 
itself  is  an  evidence  of  this  capacity,  for  the  reserved  power 
of  the  people  is  expressly  mentioned  therein.5  The  preamble 
is  also  an  evidence  of  it.0 

1Cf.  Johnston,  Connecticut,  Chaps.  VI.  to  XII.;  Andrews,  The  River 
Towns  of  Connecticut,  Johns  Hopkins  Series,  Vol.  VII. 

2Kuhn,  Ueber  die  Entstehung,  etc.,  188  seq.;  Schrader,  582. 

3Post,  Bausteine,  etc.,  Book  II.,  §§112,  113.     See  also  Schrader,  supra. 

4 See  Maine,  Popular  Government,  Essay  IV.;  Hosmer,  Anglo-Saxon 
Freedom,  Chap.  XIII. 

5 Constitution,  IX.  and  X.  Amendments. 

6 Mr.  Bryce  (American  Commonwealth,  Vol.  I.,  Part  I.,  Chap.  XXVI., 
p.  300),  says :  "  The  aim  of  the  Constitution  seems  to  be  not  so  much  to 
attain  great  common  ends  by  securing  a  good  government  as  to  avert  the 
evils  which  will  flow,  not  merely  from  a  bad  government  but  from  any 
government  strong  enough  to  threaten  the  pre-existing  communities  or 


202     An  Introduction  to  the  Study  of  the  Constitution. 

Though  the  framework  of  the  Federal  Government,  when 
subjected  to  practical  tests,  has  given  rise  to  a  good  deal  of 
friction  and  extravagant  construction,  occasioned  by  the 
necessities  of  our  national  economy,1  yet,  implied  in  the 
possibility  and  combined  existence  of  the  Constitution — which 
has  substantially  answered  the  purposes  of  an  hundred  years 
rule  of  democratic  power — there  is  such  an  amount  of 
political  discipline  as  can  only  be  accounted  for  by  the  training 
which  the  English-speaking  people  from  an  early  period  have 
gone  through, — a  training  colored  and  matured  and  purified 
by  the  self-dependent  life  which  colonization  of  America 
involved.  The  term  constitution  itself,  more  than  the  indefinite 
influence  of  logos,  was,  in  this  connection,  a  happy  inspira- 
tion, induced  by  the  consciousness  that  "  articles  of  con- 
federation" would  never  answer  the  purpose;  an  inspiration 
which  may  well  claim  uniqueness,  since  it  produced  the 
newest  and  best  signification  which  the  word  had  yet  attained ; 
an  enlarged  valuation  of  the  word  which  substituted  the 
ordered  political  experience  and  knowledge  of  a  self-governing 
people  for  the  arbitrary  expressions  of  the  imperator?  This 
new  valuation  of  the  word  has  gone  broadcast  over  the 
world,  giving  definiteness  to  the  institutional  characteristics 
of  barbarian  as  well  as  more  developed  political  entities.3 

the  individual  citizen."  In  saying  this  he  loses  sight  of  the  fact  that  the 
Constitution  was  adopted  to  attain  durable  and  urgent  common  ends  of 
overruling  importance.  See  Bancroft,  Formation  of  the  Constitution ; 
Fiske,  Critical  Period  of  American  History. 

1  Bryce,  American  Commonwealth,  Vol.  I.,  301. 

2  Cf.  Miller,  Const,  of  the  U.  S.,  63,  70,  71  notes. 

3  See  Post,  Bausteine  fur  eine  allg.  Rechtswissenschaft,  Book  II., 
§§103  seq.;  same,  African  Jurisprudenz,  Vol.  II.,  Part  II.;  Spencer, 
Principles  of  Sociology,  Part  V. ;  S.  Mayer,  Rechte  der  Israeliten, 
Roemer  u.  Athener,  Vol.  I.,  Book  II.;  Von  Maurer,  Mark-,  Hof-,  Dorf- 
u.  Stadt-Verfassungsgeschichte;  Howard,  Local  Constitutional  History 
of  the  U.  S.;  Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.;  Maine,  Early  Hist, 
of  Inst.;  Woolsey,  Political  Science,  Vol.  I.,  Part  III.;  Freeman,  Comp. 
Politics  ;  same,  Origin  and  Growth  of  the  Eng.  Const.;  Boeckh,  Athenian 
Constitution ;    Waitz,   Deutsche    Verf.-Geschichte ;    Freeman,   Hist,  of 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      203 

To  it  we  may  safely  ascribe  that  ultimate  canonization,  as 
Von  Hoist  improperly  called  it,  which  kept  it  safely  alive 
amidst  the  throes  of  extraordinary  civil  commotion,  spread 
over  a  half  century  in  its  rise  and  culmination.  The  term 
itself — since  the  term  itself  and  the  fact  it  stands  for  assume 
the  existence  of  that  national  unity  which  every  statehood 
must  possess  to  be  respected  among  nations;  since  these 
designate  the  unity  which  expresses  the  national  aspirations 
of  the  people  in  an  ordered  and  definite  form — must  like- 
wise stand,  ex  necessitate  rei,  for  that  sum  of  properties,  as 
Leslie  Stephens  calls  it,1  which  a  national  unity  possesses  and 
develops  on  its  own  account.  Such  properties,  on  their 
moral  side,  are  not  amenable  to  the  standards  of  an  intuitive 
ethical  theory.  The  carrying  on  of  war,  the  Indian  policy, 
the  dilatory  payment  of  debts,  the  diplomacy  peculiar  to 
governmental  regimen,  are  not  fashioned  after  canons  of 
intuitive  ethical  theory ;  they  represent  rather  the  traditions 
which  seem  best  calculated  to  secure  the  largest  national  gain 
for  the  whole  people,  and  unless  sustained  by  ripe  experience 
and  conservative  proceedings  are  calculated  to  produce  much 
discord  and  evil.  The  venerated  name  of  Washington  was 
not  proof  against  the  charge  of  immorality  in  this  regard.2 
And  probably,  if  measured  by  the  rules  of  ascetic  or  theo- 
retical morality,  the  entire  movement  of  rebellion  (which 
culminated  in  the  national  unity  here),  with  its  violent 
measures  on  both  sides,  as  well  as  the  governmental  disci- 
pline on  a  national  scale  which  it  engendered,  were  unjusti- 
fiable and  reprehensible;  just  as  the  existence  of  slavery,  and 
the  subsequent  abolition  of  it  by  war,  and  the  destruction  of 
homes  and  innocent  men,  women  and  children,  were  inex- 

Federal  Government;  Putter,  Historische  Entwickelung  der  heutigen 
Staatsverfassung  des  deutschen  Reichs;  Gneist,  Hist,  of  the  Eng. Const.; 
Dicey,  The  Law  of  the  Constitution  ;  Anson,  Law  and  Custom  of  the 
Constitution. 

•Science  of  Ethics,  Chap.  III.,  Part  II,  Sec.  XVII. ;  Taylor,  Morality 
of  Nations,  Chap.  IV. 

2  Lodge,  Life  of  Washington,  Vol.  II.,  Chap.  V. 


204     An  Introduction  to  the  Study  of  the  Constitution. 

cusable,  according  to  the  canons  of  an  innate  morality.  The 
movement  of  the  American  people  toward  a  national,  consti- 
tutional existence,  and  those  traditions  of  governmental 
regimen  which  went  along  with  it  and  gave  us  the  possibility 
and  reality  of  an  enduring  and  harmonious  political  national 
unity,  were  the  increment  left  from  individual  and  social 
turmoil  and  strife  and  unique  physical  surroundings  (not 
possible  to  the  Tauregs  or  Tibbus  of  the  Sahara,  or  even  to  the 
people  of  England),1  which  carried  in  its  train  a  vast,  an  incal- 
culable quantity  of  immoral  action  when  tested  by  the  rules 
of  intuitive  morality. 

A  reference  to  the  Federal  Constitution  would  be,  of  course, 
incomplete  which  did  not,  however  briefly,  touch  upon  the 
institutions  whose  existence  it  emphasizes.  Thusthe  separation 
of  the  fundamental  governmental  functions  into  three  depart- 
ments, according  to  the  phase  of  activity  in  administration 
which  these  separately  or  collectively  exercise,  needs  passing 
mention.  Enough  has  already  been  said  on  the  exercise  of 
executive,  legislative  and  judicial  powers  by  different  coordi- 
nate departments;2  yet  the  functions  thus  separated  were 
not  divided  up  according  to  any  theoretical  scheme.  They 
became  divided  in  virtue  of  that  process  of  segregation  which 
social  and  political  bodies  in  the  course  of  development  dis- 
close. No  nation  has  ever  been  free  from  this  mode  of 
growth;  only  the  process  of  segregation  has  not  been  as 
definite  and  permanent  as  in  England  or  the  United  States. 
The  functions  themselves  are  already  seen  in  the  earliest 
political  forms.  Executive,  legislative  and  judicial  functions 
are  performed  by  the  administrative  bodies  of  the  earliest 
tribes  which  have  attained  any  political  forms;  only  they 
are  apt  to  be  exercised  by  the  members  of  the  tribe  or  group 

'See  De  Tocqueville,  Democracy  in  America,  Vol.  I.,  209. 

2 See  Montesquieu,  Spirit  of  Laws,  Book  XI.,  Chap. VI.;  Bryce,  Ameri- 
can Commonwealth,  Vol.  I.,  Chaps.  III.  and  IV.  See  also  the  last  pre- 
ceding chapter  of  the  present  work. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      205 

themselves.  Whenever  chieftainship  became  possible,  the 
functions  of  the  executive,  at  least,  were  apt  to  become  segre- 
gated from  the  mass  of  administrative  functions  of  the  group, 
and  the  functions  of  judge  became  exercised  whenever  the 
chief  exercised  priestly  power  or  influence.  Chieftainship 
and  priestly  influence,  if  attaining  to  more  than  mere  tempo- 
rary leadership,  were  bound  to  eventually  obtain  the  power 
and  right  of  representation  and  dictation  even  in  legislative 
matters;  and  therefore  we  may  trace  back  to  very  early 
traditions  the  exercise  of  all  of  these  three  functions  by  repre- 
sentative bodies  or  agents.  It  is  true  they  might  not  be  such 
representatives  in  virtue  of  any  conscious  process  of  reason- 
ing or  initiative,  nor  upon  any  extensive  scale,  but  they 
became  such  in  virtue  of  the  fundamental  fact  that  they 
depended  upon  a  governed  unity,  and  upon  the  further  fact 
that  they  discharged  functions  relating  to  that  unit  which 
otherwise  must  have  been  largely  performed  by  it.  There 
were  always  at  the  base  of  the  governmental  organon  the 
members  of  a  group  or  groups,  more  or  less  compound  in 
character,  increasing  in  numbers,  variety  and  detail  as  the 
organon  became  larger  and  more  varied  in  character.1  It 
was  in  the  volume  and  distribution  of  these  coordinate  func- 
tions that  peoples  in  the  past  disclosed  flagrant  and  disinte- 
grating political  defects.  They  succumbed  in  virtue  of  a 
faulty  and  self-destructive  distribution  of  governmental  func- 
tions. The  lack  of  broad  and  enduring  cohesive  bodies, 
connected  together  by  a  national  growth  as  fundamental  in 
character  as  the  local  growths,  or  the  too  developed  functions 

1Cf.  Spencer,  Prin.  of  Soc,  Vol.  II.,  Part  V.;  Post,  Bausteine,  etc., 
§103  seq.;  same,  Ursprung  des  Rechts  and  Genossenverfassung  ;  Waitz, 
Deutsche  Verfassungsgeschichte;  De  Coulanges,  Ancient  City;  Lewis 
Morgan,  Ancient  Society;  Hearti,  Aryan  Household;  Maine,  Early  Law 
and  Customs;  same,  Early  Hist,  of  Inst.;  Lang,  Myth,  Ritual  and  Re- 
ligion ;  Lubbock,  Prehistoric  Times ;  Lindsley,  Mind  in  the  Lower 
Animals,  Vol.  I.,  Chaps.  XXL,  XXII.;  Green,  Making  of  Eng.,  166  seq.; 
Stubbs,  Const.  Hist,  of  Eng.,  Vol.  I.;  Gneist,  Hist,  of  the  Eng.  Const.; 
Woolsey,  Political  Science,  Part  III.;  S.  Mayer,  Rechte  der  Israeliten, 
Romer  u.  Athener,  Vol.  I.,  §33  seq.;  Leist,  Graeco-Ital.  R.  G. 


206     An  Introduction  to  the  Study  of  the  Constitution. 

of  one  administrative  branch  at  the  expense  of  another,  at 
one  time  or  another,  explain  the  dissolution  and  disintegra- 
tion of  past  and  ancient  political  forms.  Lack  of  circum- 
stance or  opportunity  no  doubt  will  account  for  much  of 
this;  will  account  for  the  decay  of  political  organisms  whose 
architectural  remains  surpass  ours  in  magnificence  and  dura- 
bility. The  course  of  mankind  represents  the  eventual  rise 
of  organons  containing  a  better  balanced  distribution  of* 
administrative  functions.1  And  even  now  it  is  not  certain 
how  far  we  have  attained  perfection  in  this  regard — as  little, 
indeed,  as  it  is  how  far  the  civilized,  settled  and  sheltered  being 
has  improved  the  physical  constitution  of  man  beyond  that 
exhibited  by  the  savage.  We  have  already  seen  that  the 
bi-cameral  system  is  tending  to  disappear.  And  in  view  of 
the  vagaries  of  a  George  and  Bellamy,  there  is  no  telling 
what  changes  will  have  to  be  made  to  escape  the  consequences 
of  a  senile  government.  In  any  event,  the  drift  of  human 
events,  amenable  to  a  process  of  growth  which  sloughs  off 
the  worse  for  the  better  elements,  is  toward  progress,  and, 
accordingly,  toward  a  better  distributed  and  better  regulated 
individual  and  social  regimen;  consequently  there  is  justifi- 
cation for  the  idea  that  we  have  the  best  form  of  government 
yet  extant.  If  this  is  so  it  is  because  our  executive,  legisla- 
tive and  judicial  coordination  is  the  product  of  centuries  of 
social  and  political  growth,  taking  root  and  bearing  fruit  in 
the  most  congenial  soil  and  under  the  most  favorable  con- 
ditions. Without  that  our  Constitution  would  have  shared 
the  fate  of  the  theories  of  Locke  and  Shaftesbury  and  of 
Si  eyes. 

The  subject  of  taxation  is  one  which  has  bred  a  vast 
amount  of  oppression  and  discontent.  Its  history  is  marked 
by  excesses  on  the  part  of  rulers,  and  rebellious  opposition 
where  subjects  had  any  voice  in  affairs.  The  bureaucratic 
tendencies  which  it  bred,  the  espionage  it  induced,  the  obli- 

1  Cf.  Hosmer,  People  and  Politics ;  Bagehot,  Physics  and  Politics  ; 
Amos,  Science  of  Politics  ;  Aristotle,  Politics. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.     207 

gations  its  enjoyment  put  upon  rulers  and  their  satellites  to 
satisfy  the  murderous  discontent  of  the  masses,  are  depicted 
on  the  pages  of  history  of  every  ancient  nation  which  ob- 
tained a  national  or  even  a  state  character. 

Taxation,  like  all  organized  social  incidents,  has  broadened 
in  its  connotation  and  application,  with  the  growth  of  man- 
kind. Its  signification  is  traceable  down  to  the  primitive 
gifts  or  tributes  of  peoples  to  their  rulers  or  conquerors,  of 
tribal  associations  to  their  chiefs.  Its  earliest  form  is  prob- 
ably the  tribute  which  subjugated  people  gave,  in  kind,  to 
their  oppressors  or  conquerors.1  Its  necessity  is  apparent,  in 
the  absence  of  any  other  fund,  or  sufficient  fund,  for  the 
maintenance  of  the  state.  While  it  does  not  bear  the  rela- 
tion to  mankind  which  language  does,  nor  possess  its  psycho- 
logic value,  it  is  a  never-failing  incident  of  political  adminis- 
tration, even  if  archaic  in  form,  except  perhaps  in  the  most 
primitive  days.  It  is  a  characteristic  of  political  organiza- 
tion at  aii  early  stage,  and  it  did  not  come  up  as  an  in- 
vention, but  developed  as  a  necessary  and  spontaneous  in- 
cident of  political  life.  The  forms  it  takes  on  are  such  as 
the  surrounding  circumstances,  the  traditions  of  the  social 
form  and  the  will  of  the  mass,  tend  to  effectuate.2 

The  power  of  taxation  accorded  to  the  Federal  Govern- 
ment was  given  in  such  terms,  and  with  a  view  to  those 
forms  which  were  best  known  to  and  had  been  in  use  in  the 
Colonies ;  and  the  Colonies  had  inherited  much  of  their  know- 
ledge and  practice  upon  this  point  from  England,  where  the 
knowledge  had  come  up  and  expanded  from  the  village 
forms  of  a  later  and  non-migratory  tribal  life.  The  sub- 
stitution of  a  money  equivalent  for  services  in  kind,  in  the 
course  of  political  development,  corresponds  with  the  rise  of 
contractual  transactions  in  lieu  of  mere  sensual  dealings  by 

•Spencer,  Principles  of  Sociology,  Vol.  II.,  Part  V.,  Chap.  XVI.; 
Hallam,  Middle  Ages,  Index,  "  Taxation." 

2  Take  our  modern  "  tariff  laws."  The  terra  is  traceable  to  the  Arabic 
"ta'rif."  And  the  levy  of  duties  thus  emphasized  finds  its  practice  in 
the  tribes  of  the  Sahara,  back  in  the  earliest  days. 


208     An  Introduction  to  the  Study  of  the  Constitution. 

means  of  barter  and  exchange ;  it  corresponds  with  the  re- 
placement of  the  condition  of  status  by  that  of  contract ; 
it  corresponds  with  the  rise  of  a  common  representative 
of  value,  instead  of  the  thing  in  specie.  It  became  a 
necessity  in  its  modern  forms  as  a  condition  of  serf-like 
regimen  became  superseded  by  a  freer,  more  independent  and 
autonomous  existence.  And  this  independent,  autonomous 
existence,  spontaneously  and  unconsciously  becoming  preva- 
lent, marked  by  changing  vicissitudes  and  by  the  rise  and 
fall  of  many  peoples,  was  made  conspicuous  in  our  form  of 
representative  government.1  Representation,  which  thus  be- 
came a  predominant  characteristic  of  political  progression,  in 
symbols  of  value  as  well  as  in  governmental  agency,  disclosed 
a  wider  application,  a  more  extensive  prevalence  in  the  law 
of  contract,  and,  incidentally,  in  those  forms  of  agency  with 
which  the  law  deals.  It  found  expression  in  duties,  imposts, 
and  other  forms  of  taxation. 

The  occupation  of  war,  as  already  mentioned,  one  of  the 
most  primitive  of  occupations — perhaps  the  first  occupation, 
outside  of  sensual  cohabitation  and  search  for  food,  which 
engaged  the  attention  of  the  earliest  being" — is  likewise  lodged 
in  the  keeping  of  the  Federal  Government.  The  industrial 
movement  has  largely  displaced  the  earlier  prevalence  of  the 
practice  of  war.  To  Avar,  and  the  coercion  which  tied  a  mili- 
tant group  together  and  bound  it  to  a  chief,  we  may  trace  the 
beginnings  of  political  existence.  Inasmuch  as  the  power  of 
government  grows  as  a  force,  in  spite  of  opposition,  it  must 
follow  that  militant  life  begot  political  forms.     Here  there  is 

1  Puchta,  in  thus  stating  the  position  of  many  jurists,  says  that  the 
fundamental  characteristic  of  law  is  freedom  of  the  individual ;  Institu- 
tionen,  Vol.  I.,  §2  seq.;  but  that  this  is  dependent  on  social  growth,  and 
has  a  relative  signification,  in  no  way  assuming  independence  of  social 
development,  is  irrefutable.  See  Ihering,  Geist  des  romischen  Rechts, 
etc.,  Part  II.,  §30  seq.)  Spencer,  Principles  of  Sociology  ;  Amos,  Science 
of  Law;  Austin,  Province  of  Jurisprudence;  Maine's  Works;  Pollock's 
Essays  in  Jurisprudence  and  Ethics ;  Stephens,  Science  of  Ethics ;  Ihering, 
Zweck  im  Recht,  passim.     And  seejwst. 

2C/.  Chap.  II.,  Sec.  II.,  ante. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      209 

an  early  possibility  of  command,  of  the  enforcement  of  a  rule 
or  a  sanction ;  here  may  be  found  in  germ  legislative,  execu- 
tive and  judicial  representation,  from  which  point  the  germ 
may  grow  to  maturity  under  favorable  conditions.  But  it 
is  one  of  the  remarkable  phenomena  of  evolving  social  life 
that  this  necessity,  in  the  beginning  of  political  regimen,  has 
come  to  be  regarded  as  a  retarding  factor  in  our  later  social 
growth.     Ethical  doctrine  unreservedly  condemns  it. 

And  yet  there  may  be  some  reason  for  pausing  before 
committing  political  life  to  the  ethical  canon  which  renders 
war  criminal  and  useless.  It  is  hardly  likely  that  any  ad- 
ministration would  favor  the  entire  abolition  of  all  militancy, 
including  naval  institutions,  especially  as  all  nations  are 
agreed  upon  keeping  them  up.  It  is  a  question  whether 
this  military  force  is  not  a  prime  and  indispensable  factor  to 
counteract  and  keep  down  that  anarchic  element  which  dis- 
satisfaction, poverty  and  theory  combine  to  create.  In  the 
maintenance  of  military  establishments  the  United  States  is 
assured  an  unmolested  expansion.  But  the  fact  that  this 
fundamental  function  has  been  taken  away  from  the  States 
and  has  been  conferred  upon  the  Federal  organon,  is  one  of 
the  most  pronounced  indicia  that  war  has  ceased  to  be  the 
fitful  everyday  pastime  of  individuals  or  groups  within  the 
organic  whole  and  that  now  it  serves  the  useful  purpose 
alone  of  maintaining  national  integrity.  The  States,  how- 
ever, may  guard  themselves  against  internal  enemies,  and 
enforce  their  laws,  Math  the  aid  of  the  military  forces,  by  force 
of  arms,  thus  showing  how  military  may  accompany  judicial 
coercion,  how  executive  and  judicial  coercion  may  assume  a 
militant  aspect.  In  the  main,  however,  from  the  smallest 
local  subdivision  up  to  the  Federal  organon,  the  government 
is  based  upon  an  industrial  life. 

Less  fundamental,  less  primitive  are  those  declarations  of 
principles  contained  in  the  first  eight  amendments  to  the 
Constitution.  Though  they  breathe  the  aspirations  of  man- 
kind centuries  ago,  and  find  a  more  or  less  responsive  echo 


210     An  Introduction  to  the  Study  of  the  Constitution. 

among  a  cognate  people  upon  the  continent  of  Europe ; 
though  somewhat  similar  phases  of  popular  feeling  may  be 
found  in  archaic  political  histories  of  Indo-Germanic  peoples, 
yet  they  are  the  later  results  of  political  evolution.  In  the 
village-community  period,  or  in  the  still  more  antique  groups 
of  the  earliest  savage,  we  look  in  vain  for  such  declarations 
of  principles ;  declarations  which  give  expression  to  series  of 
customs  and  inherited  notions,  around  which  definite  concep- 
tions and  feelings  had  clustered.  It  took  time  before  the 
abstractions  thus  formulated  could  become  the  occasion  for 
strong  emotional  feeling ;  savages  as  little  as  animals  could 
be  trained  to  fight  for  an  abstraction.  These  conceptions 
and  feelings  thus  expressed  had  become  a  part  of  the  natural 
emotion  which  personality  engenders  as  it  develops,  but 
they  were  of  social  form.  The  declarations  of  principles 
referred  to  speak  of  personal  freedom,  sacredness  of  home, 
personal  security,  protection  of  property,  and  a  popular  form 
of  adjudicating  controversies,  and  imply  a  state  of  political 
existence  beyond  that  of  mere  savage  or  barbarian.  The 
sacredness  of  home  is  not  a  characteristic  of  savage  peo- 
ples ;  and  the  protection  of  property  alluded  to  is  based  on 
individual,  not  joint-tribal  possessions.  These  possessions 
have  made  their  painful,  dreary  and  slow  progress  from  the 
earliest  forms  of  social  grouping  through  feudal  life  and 
landholding,  and  barter  and  trade,  and  later,  commerce  and 
contract ;  and  tribunals  to  enforce  the  results  of  barter,  com- 
merce and  contracts  have  given  them  their  most  modern 
form.  The  rise  and  spread  of  city  life  have  facilitated  the 
spread  of  these  industrial  requirements.  Personal  security 
was  attainable  at  an  early  period,  but  it  was  a  security 
limited  to  the  group  of  which  the  individual  was  a  member ; 
a  security  which  depended  largely  upon  the  relative  proximity 
of  other  inimical  groups.  But  the  security  which  is  attended 
with  regulated  order,  and  which  reaches  over  a  definite 
expanse  of  territory,  can  only  be  predicated  when  a  king's 
peace  goes  beyond  tribal  limits.     The  course  of  evolution  is 


Physical  and  Social  Growth  in  the  U.  8.  Constitution.      211 

toward  an  ever  wider  expansion  of  the  territory  of  regulated 
order  and  protection,  divided  up  into  national  domains. 
But  the  freedom  which  is  assured  as  the  realm  of  guaranteed 
security  expands,  has  varied  at  different  times  in  the  history 
of  mankind,  has  varied  among  different  peoples,  has  varied 
among  the  same  people  at  different  stages  of  social  and  po- 
litical development. 

The  ancient  Grecian  was  bound  to  a  discharge  of  certain 
political  functions  to  his  demos,  home  or  phratria  ;l  services 
which  the  Latins  called  munera,  and  which  long  military 
service  or  service  in  the  Senate  or  other  important  ways  and 
offices  alone  could  relieve  of.2  As  imperial  rule  superseded 
and  replaced  the  rule  of  the  kome,  the  phratria,  and  the  city, 
the  munera  became  replaced  by  severer  exactions  against  the 
high  and  the  low.3  We  see  the  struggle  for  freedom  here 
quite  unsuccessful.  And  yet  the  Roman  jurisprudence 
discloses  a  consecutive  improvement  in  favor  of  rights 
throughout  its  history.  The  freedom  mankind  now  enjoys 
is  peculiar  to  our  present  age.  The  freedom  enjoyed  in  the 
United  States  is  peculiar  to  that  country.  The  freedom  of 
mankind  depends  upon  the  cohesiveness  of  its  various 
groups,  the  form  of  political  government  these  groups  have, 
the  capacity  the  members  of  a  political  unity  display  for 
ordered  self-government,  and  upon  the  current  sentiments 
regarding  sacredness  of  property  and  other  possessions  and 
contractual  obligations,  not  to  mention  other  social  inci- 
dents. In  this  respect  freedom  discloses  the  same  depend- 
ence upon  man's  development  which  progressive  morality 
discloses.4  Its  course  is  not  always  upward  and  onward ; 
the  comparative  peace  and  prosperity  of  one  decade  may 

1  Aristotle,  Politics,  Book  III.,  Chaps.  I.,  III. 

2Kuhn,  Romische  Stadtverfassung,  Vol.  I. 

3  Ibid.  Gibbon's  Decline  and  Pali  of  the  Roman  Empire  also  illus- 
trates this. 

4Ihering,  Zweck  im  Recht ;  Fowler,  Progressive  Morality  ;  same,  Prin- 
ciples of  Morality  ;  Stephen,  Science  of  Ethics  ;  Spencer,  Data  of  Ethics  ; 
same,  Justice. 


212     An  Introduction  to  the  Study  of  the  Constitution. 

become  replaced  by  the  next;  the  clash  of  classes  may  be 
attended  by  alternating  successes  and  failures;  the  wealth  of 
to-day  may  become  replaced  by  the  poverty  of  the  next 
generation.  The  history  of  mankind  is  full  of  ups  and 
downs,  and  all  the  ruins  are  not  to  be  sought  for  in  ancient 
times.  Upon  the  whole,  however,  man's  personality  has 
widened,  his  sphere  of  usefulness  has  become  more  extended, 
his  rights,  privileges  and  opportunities  and  capacity  for 
enjoyment  have  become  enlarged.  And  with  these,  man's 
obligations,  legal  and  ethical,  have  widened,  enlarged  and 
become  more  complicated. 

The  ethical  philosopher  is  certain  to  err  on  one  side  or 
another,  either  by  enforcing  too  lax  or  too  rigorous  a  doc- 
trine, who  ignores  the  characteristics  of  given  occurrences  and 
the  ethical  need  of  the  moment,  in  the  complicated  history 
of  modern  individuals  living  in  and  through  a  social  organism, 
whose  pressure  upon  them  is  from  all  sides  and  in  multiform 
details.1  The  killing  of  individuals  to  save  near  kith  and 
kin,  or  to  save  a  nation,  is  not  regarded  as  immoral;  the 
falsifying  of  facts  for  the  purpose  of  avoiding  some  greater 
evil  has  been  held  to  be  justifiable  ;  the  too  persistent  follow- 
ing of  the  path  of  glory,  in  the  interest  of  national  renown, 
has  been  condemned  where  it  involves  poverty  and  misery  to 
wife  and  children ;  the  too  tender  solicitude  for  the  young, 
when  it  begets  a  pampered  spirit,  has  been  called  unethical ; 
the  giving  of  largesses  to  the  poor,  the  founding  of  poor- 
houses,  foundling-hospitals,  have  been  condemned  in  so'far 
as  they  breed  vagrancy  and  incontinence.  Frequently  a 
detailed  inquiry  is  essential  to  ascertain  the  drift  of  an  act, 
whether  in  the  end  it  be  good  or  bad.  But  the  ready 
consciousness  of  right  which  the  given  social  training  begets 
solves  the  problem  thus  frequently  presented  quite  quickly, 
much  as  instinct  impels  the  animal  along  the  right  path. 
For  in  this,  as  in  most  things,  individuals  live  a  spontaneous, 

Leslie  Stephen,  Science  of  Ethics;  Fowler,  Progressive  Morality; 
same,  Principles  of  Morals  ;  Taylor,  Morality  of  Nations. 


Physical  and  Social  Growth  in  the  U.  S.  Constitution.      213 

unconscious  life,  doing  mechanically  the  things  which  a  com- 
plicated web  of  circumstances  is  continually  imposing  upon 
them.  And  thus  freedom  is  attained ;  freedom  in  the  selec- 
tion of  alternatives,  in  the  enjoyment  of  our  possessions,  in 
the  pursuit  of  remedies  for  wrongs  done,  in  the  enjoyment  of 
all  the  blessings  which  flow  from  our  constitutional  political 
complexus ;  freedom  as  home  life,  class  life,  church  life,  com- 
mercial life,  city  or  country  life,  state  and  the  nation's  life, 
enable  us  to  understand  it. 

The  later  phenomena  which  the  other  seven  amendments 
of  the  Constitution  give  expression  and  currency  to  are 
peculiar  to  this  country. 


CONCLUSION. 

Whatever  resemblance  there  maybe  between  this  nation 
and  other  constitutional  political  organisms,  none  are  like  it 
in  that  growth  which  is  implied  in  our  social  development 
from  township  and  county  to  state  and  federal  organisms. 
None  are  like  it,  upon  the  same  scale  of  territorial  magni- 
tude, in  that  moderate  and  excellent  spirit  which,  in  the 
main,  has  preserved  the  country  from  the  enforcement  of 
extravagant  theories,  there  being  but  one  instance  of  such 
extravagance,  that  is,  the  conferring  of  the  franchise  upon 
a  great  mass  of  uneducated  slaves.  The  heritage  which  was 
received,  through  English  experience,  from  our  forefathers — 
which  on  English  soil  developed  a  sturdy,  independent 
yeomanry — in  such  a  fruitful  atmosphere  as  that  of  untamed, 
virgin  America,  was  bound  to  create  a  self-dependent  and 
honest  population.  The  result  thus  obtained,  forming  the 
fundamental  tone  of  our  national  consciousness,  has  colored 
all  succeeding  phases  of  our  national  population ;  and  against, 
it  anarchists  must  inevitably  beat  themselves  to  death,  until  a 
farming  population  becomes  crushed  out  by  the  city  life  and 
the  city  politics  and  the  city  morals  of  the  nation.  For,  as 
in  Rome,  so  here  city  life  is  the  worst  breeder  of  political 
and  social  contagion.  The  future,  however,  may  show  a  cure 
for  this. 

This  colonial  spirit  that,  in  the  wilderness  of  America, 
hewed  out  our  beginnings  as  a  nation — bred  and  reared  in 
the  forest,  on  the  farm  and  in  adversity — while  aided  by 
the  city  life  of  our  forefathers,  created  that  national  pulse 
and  feeling,  however  obscured  it  may  have  become,  which 
ended  in  a  unique  and  quite  undefmable  sovereignty.  It 
created  a  state  feeling  which  manifested   itself  in  the  safe- 


Conclusion.  215 

guards  of  state  integrity  which  were  incorporated  in  the  Con- 
stitution. To  the  same  spirit  is  attributable  the  solicitude 
displayed  in  the  provisions  of  the  Constitution  against 
unseemly  and  arbitrary  encroachment  upon  the  customary 
and  individual  rights  of  the  people.  He  who  reads  the 
history  of  colonial  days  must  be  struck  with  the  earnestness, 
piety  and  capacity  for  autonomous  government  shown,  in 
spite  of  the  rudeness  and  lack  of  discipline  frequently  appa- 
rent. No  other  people  were  more  careful  in  their  conclu- 
sions, so  swayed  by  intelligent  understanding  of  their  needs 
and  situation.  The  example  of  French  license  and  anarchy, 
of  German  docility,  may  be  fittingly  placed  in  contrast  with 
American  self-control,  notwithstanding  that  the  war  of  the 
Revolution  of  1776  was  attended  with  great  vexations,  inci- 
dental to  the  upturning  of  the  established  order  in  some 
details,  and  was  fraught  with  trouble  and  weakness  under 
the  Articles  of  Confederation,  and  was  provocative  of  much 
popular  clamor  and  dissatisfaction.  The  nation  was  then 
in  process  of  forming ;  it  was  not  yet  formed. 

As  a  code  formulates  and  makes  clear  the  hidden  princi- 
ples of  rule  and  law,  and  preserves  them  from  a  radical 
destruction  and  too  uncertain  destiny,  so  did  the  Constitu- 
tion preserve  and  formulate  enough  of  the-  national  aspiration 
and  feeling  here  to  enable  the  national  unity  to  obtain  a  more 
regular  and  stronger  pulsation  and  a  larger  and  more  ordered 
influence.  It  is  a  product  of  the  best  and  most  orderly 
aspirations  of  the  colonial  life  in  this  country.  It  is  in  this 
regard  a  unique  and  invaluable  product.  No  better  testi- 
mony could  be  obtained  of  the  true  character  of  the  best  and 
most  intelligent  manhood  of  our  forefathers.  While  it  was 
impossible  of  conception,  except  among  a  people  who  had 
advanced  along  the  path  of  civilization  and  enlightenment 
to  a  place  which  implies  the  existence  of  humane  laws 
bearing  upon  most  of  the  relations  of  mankind  in  industrial 
and  moral  points  of  view,  yet  it  was  no  mere  code  of  laws. 
The  framers  thereof  in  framing  it  undertook  to  blend  prece- 


216     An  Introduction  to  the  Study  of  the  Constitution. 

dent  with  new  and  larger  purposes.  The  success  they 
achieved,  under  all  the  favorable  environment,  is  marked  by 
a  century  of  uninterrupted  and  phenomenal  growth. 

It  would  be  unfortunate  if  the  tribunal  to  which  has  been 
delegated  the  duty  of  construing  the  Constitution  had  placed 
upon  that  instrument  a  narrow  and  strict  construction,  such 
as  might  be  accorded  to  a  statute  in  derogation  of  the  common 
law  or  a  contract.  Fortunately  a  larger,  more  liberal  rule 
has  been  employed.1  "A  constitution  is  an  instrument  of 
government,  made  and  adopted  by  the  people  for  practical 
purposes."  .  .  .  "  It  should  be  construed  so  as  best  to  sub- 
serve the  great  objects  for  which  it  was  made."3  In  this  way 
the  Federal  power  has  not  been  emasculated  or  curtailed  of 
essential  powers  which  a  narrower  construction  might  have 
entailed.  We  have  already  discussed  the  subject  of  implied 
powers  as  held  by  the  Supreme  Court  of  the  United  States. 
Those  implied  powers  have  been  held  to  authorize  the  estab- 
lishment of  a  national  bank,  of  issuing  legal-tender  paper 
currency,  to  authorize  Congressional  legislation  relative  to 
appeals  from  the  decisions  of  State  tribunals  to  the  Supreme 
Court  of  the  United  States,  the  release  of  Federal  judicial 
officers  from  imprisonment  by  State  officers  on  charge  of 
murder,  under  a  writ  of  habeas  corpus.  The  Federal  courts, 
under  their  claim  of  independent  existence,  have  felt  author- 
ized to  pursue  their  quest  after  principles  of  equity,  common 
law,  commercial  law,  general  law  of  contracts,  general  prin- 
ciples of  construction,  and  so  on,  without  reference  to  the 
rulings  of  State  courts  in  the  given  State  where  the  transac- 
tion occurred.3 

It  is  quite  comprehensible  how  this  species  of  construction 

1  Cf.  Wharton,  American  Law,  §3S8  seq. 

2  Desty,  Federal  Constitution,  39;  Juilliard  v.  Greenman,  110  U.  S. 
421.  438,  439:  McCullough  v.  Maryland,  4  Wheat.  316,  405,  407. 

3 16  Peters,  495  ;  2  Black,  418  ;  92  U.S.,  501;  102  U.S.,  14;  18  How., 
517;  1  Wall.,  83;  19  Wall.,  66G  ;  100  U.  S.,  239;  18  Wall.,  546;  14 
Wall.,  661  ;  16  Peters,  1 ;  4  How.,  353  ;  12  How.,  139  ;  13  How.,  268  ; 
107  U.  S.,  102  ;  id.,  529  ;  3  How.,  464  ;  10  Wall.,  497  ;  16  Wall.,  678. 


Conclusion.  217 

has  benefited  the  nation  as  a  whole.  Any  other  course 
might  have  tended,  especially  in  the  first  half  century  of  the 
life  of  the  Constitution,  to  cripple,  if  not  to  destroy  many  of 
the  benefits  of  Federal  control.  In  any  event,  the  factors 
which  produced  the  Constitution  and  which  tended  to  keep 
it  alive,  operating  even  in  the  hands  of  strict  constructionists, 
such  as  Jefferson  and  John  Randolph  (as  when  Jefferson, 
sustained  by  Randolph  in  the  House  of  Representatives, 
created  an  embargo  and  purchased  Louisiana ;  and,  to  add 
another  instance,  when  Jackson  nullified  nullification),  culmi- 
nated in  making  a  nation,  somewhat  in  despite  of  the  un- 
elastic  terms  of  the  Constitution,  showing  that  the  nation's 
growth,  upon  the  whole,  is  not  upon  lines  previously  outlined 
in  any  constitutional  theory,  unless  that  theory  happens  to 
fit  in  with  the  facts  comprising  such  growth. 

Here  it  is  deemed  best  to  close  this  introduction  to  the 
study  of  the  Constitution.  The  author's  object  has  been  to 
make  apparent,  in  outline,  how  true  it  is  that  our  Federal 
Constitution,  though  unique  and  entitled  to  great  admiration 
and  obedience,  though  conceived  and  formulated  in  deference 
to  experience  and  actual  growth,  is,  like  other,  unwritten, 
constitutions,  amenable  to  the  undercurrent  of  national 
growth.  If  God's  conception  and  creation — man — is  amena- 
ble to  such  factors  and  laws,  surely  man's  must  be.  The 
author's  object  has  also  been  to  obtain  for  the  Constitution 
that  large  view  which  renders  the  Constitution  a  framework 
of  government,  coining  up  in  the  course  of  ages  of  social 
growth,  to  serve  its  purpose  for  good  or  for  bad  as  its  pro- 
visions shall  be  applied  in  consonance  to  social  and  physical 
factors  in  the  social  and  political  organism. 

One  thing  I  feel  convinced  of,  that  the  petty  schemes  of 
such  visionaries  as  Henry  George  and  Edward  Bellamy  are 
not  fashioned  upon  the  proper  scale  of  earthly  movement,  as 
herein  indicated.  The  procession  of  social  aggregates  reveals 
a  painful  progress  toward  more  perfect  conditions,  in  spite  of 
the  decay  of  many  nations.     It  illustrates  the  omnipotent 


218     An  Introduction  to  the  Study  of  the  Constitution. 

workings  of  a  mysterious  Providence,  whose  scale  of  move- 
ment is  not  fashioned  upon  any  plan  heretofore  discovered 
by  such  prophets  as  the  two  writers  indicated.  I  prefer  the 
course  of  the  conservative  statesman,  seeking  cautiously  after 
remedies  in  the  light  of  the  country's  history,  having  due 
regard  to  the  lessons  of  the  past.  Political  prophets  are  apt 
to  be  exalted  too  high  in  their  own  conceit  to  teach  us  the 
proper  course.  And  I  have  faith  in  that  mysterious  destiny 
which  in  its  own  way  is  drifting  us  along  toward  higher  con- 
ditions, for  such  is  the  lesson  of  history  and  past  politics. 


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INDEX. 


A. 

Actio  sacramenti,  7. 

Aggregate  social  bodies  (see  City, 
and  Intercourse),  their  develop- 
ment and  influence,  44,  51,  52  ; 
what  is  implied  in  such  develop- 
ment, 44,  45,  51;  their  influence 
upon  jurisprudence,  58-60;  their 
influence  upon  the  individual,  61- 
63  ;  evidences  that  early  commu- 
nities all  lived  in  groups,  150. 

Agriculture  (see  Landholding),  its 
early  stages,  70,  71 ;  a  toilsome 
occupation  not  in  early  days  volun- 
tarily resorted  to,  157;  serfs  and 
dependent  ones  first  used  to  carry 
it  on,  157. 

Air,  productive  of  law,  illustrations, 
34. 

Amos,  Sheldon,  quotation  from,  65. 

Amphictyonies,  152;  their  place  and 
influence,  152, 153. 

Anarchy,  a  condition  implying  ab- 
sence of  law  and  sovereignty,  2 ; 
some  system  of  order  at  the  base 
of  every  political  organism,  2. 

Ancient  rule,  peculiarities  of,  153. 

Aristotle  (see  State),  his  views  re- 
garding the  component  parts  of  a 
political  organism,  4  ;  his  views  of 
political  growth,  14. 

Athens,  ancient  (see  City). 

B. 

Barter  and  trade,  their  effect  in  the 
creation  of  social  aggregates,  56, 
57 ;  early  coinage,  56,  57. 

Bellamy,  Edward,  206 ;  visionary 
views  of,  217,  218. 


Blood-kinship  (see  Early  groupings), 
early  evidences,  142  ;  other  relics, 
142,  143,  144  ;  development  into 
large  political  groupings,  146 ; 
development  of  the  polls,  147  (see 
City). 

Bonaparte,  Napoleon,  his  tribute  to 
the  political  institutions  of  the 
United  States,  184,  note  1. 

Bracton  (see  Manors). 

Bridges  (see  Roads  and  bridges  and 
fortifications). 

Burh  (or  Borough),  political  devel- 
opment of,  167,  168. 

c. 

Caesar  (see  Landholding). 

Castle  (see  House). 

Childreu  (see  Women  and  children). 

City  (see  Aggregate  social  bodies, 
and  Blood-kinship),  effect  of  de- 
velopment in  converting  commu- 
nal into  individual  holdings,  88, 
89,  93,  94,  96;  its  development 
from  earlier  conditions,  147;  spread 
of  city  life  in  ancient  Athens,  148, 
149  ;  revolutionary  classes  in  anci- 
ent and  medieval  cities,  149  ;  relics 
of  early  growth,  151 ;  evidences  in 
names  of  words,  151 ;  and  places, 
151,  152;  ancient  cities  reveal 
great  individual  capacity,  155  ;  in- 
fluences producing  cities  also  pro- 
duce other  political  phenomena, 
157 ;  early  communities  lived  only 
in  groups,  150  ;  effect  of  in  breed- 
ing political  and  social  contagion, 
214. 

City  growth  in  the  creation  of  doc- 
trines of  law  relating  to  party- 
walls,  100. 


230 


Index. 


Coinage  (see  Barter  and  trade). 
Colonial  settlements,  ancient,  how 
caused,  153 ;  some  consequences, 
153. 
Common  law  (see  Constitution),  at 
the  base  of  the  Constitution  of  the 
United  States,  181,  182,  199. 
Conclusion,  214-218. 
Congress,  the  term  not  a  happy  one 
for  the  Federal  legislature,  189; 
whence  taken,  189. 
Constitution,  the  United  States  Con- 
stitution not  merely  a  charter,  139; 
growth  of,  139,  179,  180  ;   writers 
in    Germany,    France    and    Eng- 
land trace  their  constitutions  to 
early  beginnings,  139;    this  em- 
braces barbarian  and  succeeding 
groupings,  139  ;  same  true  of  the 
United  States  Constitution,   140; 
proper  understanding  depends  upon 
knowledge  of  growth  of  subdivi- 
sions, 140;  not  all  written,  140; 
could  not  exist  in  totally  unorgan- 
ized   communities,  140,   141 ;   its 
growth  involves    individual    and 
social  development,  141 ;    Consti- 
tution of  the  United  States  did  not 
break  all  connection  with  earlier 
conditions,  181,  182,  187,  189  (see 
Common  Law)  ;  as  framed  it  was 
coined  by  individuals,  185  ;  discus- 
sion of  its  composition  and  provi- 
sions, 188-218 ;  it  is  full  of  pleo- 
nasms, 190  ;  it  is  deficient  in  im- 
portant particulars,  190-192  ;  it  is 
the  artificial  work  of  fallible  men, 
192,  193  ;  modeled  after  State  or- 
ganizations,^-^; the  great  pur- 
pose it  accomplished,  197, 202, 204; 
how  canonized  (?),  197-199,203; 
some  of  its  institutional  features, 
213 ;  (seeWitenaGemote,204-206); 
paper  constitutions,  180,  206. 
Constitutional  law  (see  Sovereignty), 
a  function  of  organic  social  exist- 
ence, 21. 
Continental    life,  a    precursor     to 
national  integration    among    the 
American  Colonies,  183  ;  what  this 
meant  in  the  United  States,  183- 
185  ;  its  lack  of  congeniality  with 
kingship  and  feudalism,  183,  184  ; 
its  tendency  toward  rupture  with 
European  methods,  184,  185. 


Contract  (see  Obligation). 

Corporations  (see  City),  municipal 
and  private,  their  effect  upon  social 
movement,  59, 60  ;  dangers  threat- 
ened from  this  source,  60 ;  their 
effect  upon  law,  59,  60. 

County  (or Shire),  development,  169- 
172 ;  comparisons  with  phule  and 
pagns,  169 ;  its  officers  and  juris- 
diction, 170,  171 ;  its  introduction 
into  the  United  States,  172. 

Court  (or  Tribunal)  (see  Proce- 
dure), held  in  awe  in  earlier  days, 
131 ;  ordered  procedure  gradually 
superseded  self-help  and  arbitrary 
reprisal,  131-133 ;  eventually  rules 
of  mine  and  thine  originated,  133, 
136  ;  constituent  parts  of  court 
organization  reflect  social  growth, 
136,  137;  how  they  obtained  their 
modern  forms,  137. 


D. 

Declaration    of    principles,    in    the 
United  States  Constitution,  209- 
213  ;  they  voice  a  later  product  of 
social  growth,    209-213;    Greeks 
and  Latins  did  not  have  them  to 
same  extent  as  the  United  States, 
211. 
Delicts  (see  Obligation). 
Demos  (see  Landholding),  it  shows 
the  influence  of  property  in  the 
formation  of  constitutional  law  in 
earlier  stages,   101 ;    its  develop- 
ment from  the  soil  in  modern  days, 
163, 164. 
Domestic    relations    (see    Domestic 
status,   Blood-kinship,  and    Mar- 
riage). 
Domestic  status,  considerations  why 
women  should  not  be  invested  with 
full  political  privileges,  111  ;  early 
status,   103  seq.  ;    later    develop- 
ment   of    this    status,    106-110 ; 
woman's  place  in  the  family  his- 
torically reviewed,   103-110;  the 
child's  place  in  the  family  histori- 
cally reviewed,  103-110. 

E. 

Elton,  Charles,  cited,  103. 
England,  effect  of  its  insular  position 
upon  its  political  development,  29. 


Index. 


231 


Ethical  theory  (see  War),  what  it 
must  take  note  of  in  political  de- 
velopment, 212,  213. 


F. 


Faith,  early,  effect  on  the  develop- 
ment of  political  administration, 
131. 

Family  (see  Domestic  status,  Inter- 
course, Marriage,  Manes,  Women 
and  children). 

Fas,  5. 

Feudalism,  84 ;  to  be  seen  in  anci- 
ent Greece  and  Rome,  also  in 
Japan,  China  and  Caucasus,  85 ; 
in  Germany  in  early  days,  85 ; 
and  elsewhere  at  a  similar  stage  of 
development,  86  ;  impress  on  law, 
98. 

Fiske,  John,  quoted,  39-42. 

Food  and  mates,  acquisition  of,  prob- 
ably the  first  producing  causes  of 
law,  68,  69. 

Fortifications  (see  Roads  and  bridges 
and  fortifications). 

Freedom  (see  Serfdom),  outcome  of 
political  growth,  164,  188,  209- 
213  ;  best  product  in  the  United 
States,  188. 

G. 

Geddes  and  Thomson  on  the  evolu- 
tion of  sex,  151. 

Genos  (see  Blood-kinship). 

George,  Henry,  referred  to,  206 ; 
visionary  views,  217,  218. 

Grampians  (see  Elton). 

H. 

Hanssen  (see  Landholding). 
Hardwicke,  Lord  (see  Papinian). 
Hare,  J.  1.  Clark,  quoted,  64,  65. 
Hosmer,  G.  W.,  quoted,  64,  65. 
House  (or  Castle),  a  man's  house  his 

castle,  had  its   producing  causes 

far  back  in  antiquity,  141. 
Human  being  (see  Personality),  no 

satisfactory    account     of     origin 

given,  102. 
Hundred,   its  political   history  and 

significance,  165-167  ;  comparison 

with  pliratria  not  complete,  166, 

167. 


I. 

Individual  holdings  and  ownership, 
96,  97. 

Institutional  features  and  law  (see 
Constitution,  and  Jury). 

Intercourse,  in  one  form  or  another 
a  fundamental  characteristic  of 
human  beings,  102 ;  an  incident 
in  the  eventual  difference  which 
distinguishes  the  male  from  female, 
102  ;  intercourse  and  aggregation 
two  invariable  characteristics  of 
earliest  mankind,  102  ;  family  a 
product  of  later  growth,  102,  103. 

J. 

Judges  (see  Court,  and  Priest),  char- 
acter of,  plays  a  significant  part, 
138. 

Jurisprudence  (see  Laws,  Sover- 
eignty, Judges,  Jury,  Procedure, 
Maxims  of  jurisprudence,  and 
Constitution). 

Jury,  a  relic  of  early  tribal  life, 
137  ;  effect  of,  on  administration 
of  laws,  138. 

Jus,  5,  6. 

Justice :  in  early  stages  groups  seek 
for  justice,  146  ;  then  none  of  the 
modern  individual  rights  existed, 
146. 

K. 

King,  derivation,  144  ;  early  chief, 
Cyning  or  Konung,  160  ;  develop- 
ment of  kingship  and  implications, 
160,  161  ;  coming  up  of  the  king's 
peace,  161. 

Kome  (see  Blood-kinship,  and  City). 

L. 

Landau  (see  Landholding). 

Landholding  (Agriculture)  ;  early 
stages  and  development,  70,  71,  72, 
76,  77;  Caesar  upon  early  land- 
holding  among  Germanic  and 
British  tribes,  72  ;  Tacitus  upon 
early  German  landholding,  73  ; 
Landau  and  Hanssen  upon  the 
same  subject,  73  ;  open-field  sys- 
tem, 74,  75 ;  other  forms  of,  77- 
97 ;  early  importance  in  forming 
the  demos,  144-146. 


232 


Index. 


Laws  (see  Sovereignty),  pass  current 
because  they  symbolize  the  neces- 
sities and  feelings  of  the  given 
community,  3;  variously  accounted 
for,  4  ;  invention  in  the  production 
thereof  a  later  element,  4 ;  the 
growth  of,  in  connection  with  the 
growth  of  the  state,  4  ;  Aristotle's 
views,  4 ;  in  earlier  days  were 
usages  and  customs  which  sponta- 
neously grew  up,  5,  6  ;  Prof. 
Clark's  views,  6  ;  illustrations  from 
Roman  law  of  their  growth,  7,  8, 
10 ;  from  German  and  English 
law,  9  ;  influence  of  courts  and 
priests  in  the  creation  of  laws,  11 
(see  Priest)  ;  illustrations  from 
ancient  Greece,  12  ;  from  the 
Semitic  peoples,  12,  note  2 ;  legal 
current  of  a  nation's  life  not 
changeable  by  individual  initiative, 
17  ;  modern  instances,  17,  18,  19  ; 
mental  development  upon  laws,  19; 
jurisprudence  embedded  in  social 
•  existence,  20. 

Leagues  of  cities,  differences  between 
ancient  and  medieval,  154. 

Lex,  5,  6. 

Light,  productive  of  laws,  illustra- 
tions, 34. 

Lindsay.  W.  Lauder,  his  summation 
of  moral  qualities  among  savages, 
42,  43  note. 

Littleton  (see  Manors). 

Locality  (see  Situation  and  locality). 

Local  political  subdivisions  (see 
County,  Tun,  Manor,  Hundred, 
City). 

Locke  and  Shaftesbury,  paper  con- 
stitution, 180. 

Lyall,  A.  L.,  quoted,  64. 

M. 

Madison,  James,  to  Cabell,  pleonasms 
in  the  U.  S.  Constitution,  190. 

Maegth  (see  Blood-kinship). 

Man  (see  Personality,  Sovereignty), 
is  sovereign  over  himself  but  not 
over  others,  2. 

Manes,  the  worship  of,  a  copy  of  the 
worship  of  a  tribal  chief,  and  both 
may  have  come  up  in  like  way, 
and  reacted  on  each  other,  103  ; 
through  their  worship    adherence 


to  a  hearth  created,  103  ;  and  this 
tended  toward  household  life,  103. 

Manors,  their  rise,  spread  and  poli- 
tical place  and  significance,  161- 
165 ;  constitution  of  courts-leet 
and  baron,  162 ;  relics  of,  163 ; 
its  advent  in  American  political 
life,  164 ;  its  relation  to  the  tun, 
165. 

Mansfield  (see  Papinian). 

Maritime  jurisdiction,  how  affected 
by  ebb  and  flow  of  tide,  and  by 
navigability  of  waters,  31. 

Marriage,  primitive  (see  Intercourse). 

Marshall  (see  Papinian). 

Mates  (see  Food  and  mates). 

Maxims  of  jurisprudence,  had  no 
place  in  early  tribal  life,  137 ; 
judges  do  not  always  enforce  them, 
138;  effect  upon  judicial  adminis- 
tration, 138. 

Metrolcome  (see  City). 

Miaskowski  (see  Peculiarities  in  de- 
velopment of  Swiss  landholding). 

Militancy  (see  War  and  militancy), 
effect  of,  upon  the  creation  of  pro- 
cedure, 131. 

Miller,  W.  Galbraith,  quoted,  66. 

Modern  political  development  (see 
Political  development). 

Money  (see  Barter  and  trade),  effect 
on  ownership.  96. 

Mountains  (see  Situation  and  Local- 
ity). 

N. 

Nation,  difficulty  of  defining  it,  shift- 
ing significations,  179 ;  how  the 
United  States,  a  nation,  181,  note. 

Noises,  effect  in  producing  law,  illus- 
tration, 34. 

Nomos,  5. 

o. 

Objects,  their  effect  on  law  different 
from  that  of  the  canvas  on  the 
painter's  work,  100. 

Obligation,  may  grow  out  of  a  mis- 
feasance or  nonfeasance  or  a  con- 
tract, 117,  118:  such  is  its  present 
broad  signification,  117;  in  its 
beginnings  it  represented  much 
less,  117 ;  forms  of,  in  Roman  law, 
118 ;  development  of  the  law,  118- 
123  ;  quid-pro-quo,  119, 121 ;  class- 


Index. 


233 


ification  of,  120,  123 ;  causa  and 
consideration,  120,  121 ;  forms  of 
contract,  121  ;  all  contracts  aim 
at  objects,  122 ;  creditor  and 
debtor,  122,  123 ;  how  contracts 
now  disclose  their  physical  bases, 
123,    124 ;    contractual    capacity, 

124  ;  a  tort  an  act  of  omission  de- 
pendent   upon    obligations,    124, 

125  ;  need  of  dwelling  on  physical 
and  social  factors  in  considering 
law  of,  125. 

P. 

Pagus,  its  significance,  166, 167, 169, 
170 ;  comparison  with  hundred, 
166,  167  ;  comparison  with  shire, 
169,  170. 

Paper  constitutions,  180,  206. 

Papinian,  Hardwicke,  Mansfield  and 
Marshall  make  an  epoch,  138. 

Parliament  (see  Witena  Gemote), 
early  war  council,  179. 

Peace  (see  King). 

Personality  (see  Aggregates),  legal, 
physical  element  recognized  in, 
35,  36;  maintenance  thereof,  36, 
37,  38  ;  man  a  social  product,  39  ; 
an  element  of  aggregate  life  in  its 
progressive  evolution,  39-42. 

Phratria  (see  Blood-kinship,  and 
City). 

Physical  and  social  factors  (see  the 
several  heads  of  chapters),  16. 

Pipowder,  court  of,  its  significance, 
163. 

Political  development,  modern  as 
distinguished  from  ancient,  178 ; 
best  results  attained  in  the  United 
States,  178. 

Possession,  movable  possessions  prob- 
ably among  first  causes  of  law,  68, 
69  ;  its  place  and  development  in 
law  discussed,  and  actual  tradition 
in  law,  99  ;  as  evidenced  by  law  of 
pledges,  99  ;  by  law  of  mechanic's 
liens  and  by  law  of  bailments,  99. 

Precedent,  doctrine  of,  discussed, 
13-16  ;  its  place  in  Roman  and 
English  jurisprudence,  13 ;  its 
modern  place,  14 ;  illustrations, 
15. 

Priests,  their  influence  on  the  develop- 
ment of  law,  11-13 ;  their  influence 


on  doctrine  of  precedent,  11-13; 
initiative  and  influence  produced 
casuistry  in  legal  methods,  132, 
133;  this  came  to  be  superseded  by 
rules  built  on  actual  needs,  133, 
134  ;  casuistry  did  not  cease,  forms 
continue  to  multiply,  135  ;  priests 
monopolize  the  functions  of  judges 
to  a  certain  period,  137. 

Procedure  (see  Courts,  Priests),  not 
first  producing  cause  of  law,  68  ; 
now  classed  as  adjective  law, 
126  ;  this  classification  not  univer- 
sally valid,  126  ;  the  views  of  the 
U.  S.  Supreme  Court  regarding  the 
impairing  of  obligations  of  con- 
tracts, 126  ;  early  pre  eminence  of 
court,  126 ;  self-help,  127  ;  it  is 
still  justifiable  in  certain  cases, 
128  ;  in  what  respect  notion  of 
right  innate,  128,  129  ;  develop- 
ment of,  from  self-help,  129 ;  de- 
velopment of.  131,  136;  how  law 
of  evidence  reflects  this  develop- 
ment, 135,  136. 

Property,  what  it  embraces,  97  ; 
not  an  evil  invention,  101  ;  its 
overthrow  impracticable,  101 ;  not 
synonymous  with  untrammeled 
control,  101  ;  it  is  a  relative  term, 
101  ;  theories  of  socialists  and 
anarchists  based  on  no  proper  con- 
ception of  jural  notions,  101. 

Q. 

Qxiid-pro-quo  (see  Obligation). 

E. 

Representative  government,  its  early 
use  traced,  172  seq.;  it  antedated 
the  discovery  of  the  mark,  173  ; 
not  peculiar  to  the  modern  polit- 
ical organism,  177. 

Right,  notion  of,  how  far  innate,  128, 
129. 

Rivers  (see  Roads  and  bridges  and 
fortifications,  and  Waters). 

Roads  and  bridges  and  fortifica- 
tions, trinoda  necessitas,  45,  46 ; 
their  influence  in  the  creation  of 
cities,  46  ;  and  social  aggregates, 
58  ;  in  the  creation  of  legislation, 
47 ;  effect  of  railroad  regimen  on 


234 


Index. 


views  of  courts,  47-50 ;  effect  of 
rivers  and  other  channels  of  inter- 
course on  social  movement,  47-50. 

Rogers  (see  Seebohm). 

Rome,  her  place,  power  and  decline, 
155,  156 ;  lessons  her  history 
teaches,  156  ;  these  lost  on  Charle- 
magne, 156. 

s. 

Savigny,  rivers,  66,  67. 

Scrutton  (see  Seebohm). 

Seebohm,  Scrutton  and  Rodgers  (see 
Swiss,  etc.,  landholding). 

Serfdom  (see  Freedom),  early  preva- 
lence, 157-160  ;  condition  of  serfs 
at  different  stages  of  social  growth, 
157-160 ;  slavery  the  common  law 
of  all  times  and  places  to  a  certain 
stage,  157  ;  in  America,  159 ;  its 
relation  to  family  life,  157-159 ; 
change  from  early  household  to 
political  status  involved  with 
change  of  serfdom,  160. 

Shire  (see  County). 

Situation  and  locality,  effect  of, 
upon  development  and  laws,  24, 
25  ;  the  Montenegrin  compared  to 
the  Servian,  24 ;  Cantabrian,  25 ; 
Swiss,  25  ;  Moonshiners,  25  ;  High- 
land clans,  26 ;  swamps,  their 
effect  on  social  growth,  26. 

Soil,  effect  of,  on  political  develop- 
ment, 28. 

Sovereignty  (see  Constitution,  Law, 
Nation,  and  Man),  the  notion  dis- 
cussed, 1-3 ; inadequate  to  account 
for  all  rules  under  equal  designa- 
tion of  law,  1  ;  the  word  of  feudal 
origin,  1 ;  depends  upon  law,  2 ; 
people  in  democracies  not  sovereign 
in  any  absolute  sense,  2;  it  is  a 
relative  term,  and  depends  on 
growth,  2 ;  its  use  in  the  Federal 
Constitution,  3  ;  Burgess'  notions 
illusory,  2,  note  1. 

State,  based  on  family  (see  Aristotle), 
141  ;  an  intermediate  stage,  ac- 
cording to  Aristotle,  was  the  Oe- 
nos,  141 ;  development  of  early 
groups,  141  (see  Constitution). 
State  integrity,  existed  before  Con- 
stitution of  the  U.  S.  was  adopted, 
181,  182,  193-195. 


Spencer,  Herbert,  referred  to,  66. 

Succession  and  inheritance,  develop- 
ment of  these  outlined,  111-117  ; 
evidences  of  early  succession,  116, 
117. 

Supreme  Court  of  theU.  S.,  Rules  of 
construction  in  interpreting  U.  S. 
Constitution,  161,  216;  its  views 
of  the  commerce  clause  of  the  Con- 
stitution, 161,  note  4;  influence 
of,  199. 

Swamps  (see  Situation  and  locality). 

Swiss,  mountains,  effect  upon  their 
development,  25,  29. 

Swiss  landholding  (see  Landhold- 
ing), peculiarities  in  development 
of,  91,  93;  contrasted  with  land- 
holding  in  Low  Countries,  93 ;  in 
England,  93,  94. 

Synoikismos,  153. 


Tacitus  (see  Landholding). 

Taxation,  its  development,  206-208; 
its  growth  corresponds  with  growth 
of  idea  of  representative  of  value 
and  representation  in  other  fields, 
207,  208 ;  power  given  to  Federal 
Government,  206-208. 

Temperature,  its  effect,  22 ;  in  re- 
tarding growth  among  the  Esqui- 
maux, 23  ;  among  the  Voguls,  23  ; 
Tunguses,  23. 

Themis  and  Themistes,  5. 

Torts  (see  Obligation). 

Trinoda  necessitous  (see  Roads  and 
bridges  and  fortifications). 

Tun  or  town,  significance  and  his- 
tory, 151,  164;  how  related  to 
European  cities,  164.  165;  prim- 
ordial political  '  cell,'  173. 

u. 

United  States  (see  Constitution),  ef- 
fect of  climate  upon  slavery  there- 
in, 30  ;  consequences  to  North  and 
South,  30 ;  unique  constitutional 
growth,  211 ;  its  Constitution  rep- 
resents institutional  life  of  the 
nation,  181 ;  in  what  sense  a  na- 
tion, 181,  note  ;  development  of 
Constitution,  186  seq.;  comparison 
with  growth  of  earlier  peoples,  186, 


Index. 


235 


187,  188,  200,  201 ;  best  form  of 
government  extant,  188 ;  com- 
ments upon  the  Constitution,  188- 
218. 

w. 

War  and  militancy  (see  Militancy), 
their  effect  on  the  creation  of  social 
aggregates,  52-56  ;  right  to  declare 
war  in  Federal  Government,  208  ; 
ethical  theory  relative  to,  dis- 
cussed, 209. 


Waters,  effect  on  political  develop- 
ment, 27  ;  use  of,  creative  of  laws, 
31-34;  citations  from  Grote  and 
Isaac  Taylor,  27,  28. 

Witena  Gemote,  early  war  host  or 
primitive  gathering,  173, 174, 175 ; 
from  which  evolved  segregated 
bodies  exercising  coordinate  polit- 
ical functions,  174-179,  204-206. 

Women  and  children  (see  Domestic 
status,  and  Serfdom). 

Woolsey,  T.  D.,  quoted,  64. 


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